Citation Nr: 21005415 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 11-05 562A DATE: February 1, 2021 ISSUE Entitlement to service connection for a stomach disability, to include dysmenorrhea and/or gastroesophageal reflux disease (GERD). REMANDED Entitlement to service connection for a stomach disability, to include dysmenorrhea and/or gastroesophageal reflux disease (GERD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from September 1972 to June 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, following the January 2010 rating decision that denied the Veteran’s claim for entitlement to service connection for a stomach disability, the Veteran filed a timely Notice of Disagreement (NOD) in April 2010. The Veteran was issued a statement of the case in February 2011, and after she submitted a timely Form 9, her claim was certified to the board in July 2016. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in February 2017 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran’s claims file. Following the Veteran’s hearing, the Veteran’s claim was remanded in May 2017, again in May 2018, and most recently in June 2020. As it relates to the June 2020 remand, the Board finds that there has not been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As a result, the Board finds that additional evidentiary development is required before the claim on appeal are adjudicated. Entitlement to service connection for a stomach disability, to include dysmenorrhea and/or gastroesophageal reflux disease (GERD) is remanded. The Veteran has claimed that her stomach disability, to include dysmenorrhea and/or gastroesophageal reflux disease (GERD), is due to her active duty service. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). To begin, the Veteran’s claim for entitlement to service connection for a stomach disability was remanded in the Board’s May 2018 decision. The claim was remanded because an August 2017 VA examiner did “not offer any opinion on constipation or GERD,” despite those diagnoses being identified. The Veteran was then given a VA-contracted examination in March 2019. The examiner confirmed a diagnosis of GERD, chronic constipation, leiomyoma of uterus with pelvic pain, and a history of dysmenorrhea with continued pain post menopause. The Board is reminded that this exam was previously determined to be inadequate. In brief, the negative etiological rationale provided for GERD and constipation was specifically limited to the lack of complaints during service, and there was no discussion as to why the complaints that the Veteran had voiced during service regarding pelvic pain and dysmenorrhea are not related to her current diagnosis. The Veteran had also submitted correspondence in June 2019, writing that she “was not physically examined … [and that] her conclusion was not based on a physical medical examination.” As a result, the RO was to schedule the Veteran for a VA examination. See further, Barr v. Nicholson, 21 Vet. App. 303 (2007). A VA-contracted examination then occurred in July 2020. The Veteran was not seen in person, but the examiner reviewed the Veteran’s claims file. The diagnosis of GERD was confirmed by the examiner, but that is the only diagnosis listed. The examiner then provided a negative etiological opinion, writing that the Veteran’s GERD was less likely than not due to her active duty service. The rationale provided discussed the Veteran’s in-service complaints, and then briefly wrote that the Veteran “was diagnosed with GERD in 2009, [approximately] 36 years post separation.” They then wrote that my exam was done via ACE process. [Patient’s] pelvic pain and diagnosed GERD are 2 separate conditions. [Gynecological disability benefits questionnaire] is not available via ACE process and I have requested an in-person appointment to address that claim. Thus, the examiner only found one confirmed diagnosis for which to provide a negative etiological opinion. Constipation was not discussed. The Veteran’s other pelvic disabilities, to include leiomyoma of the uterus with pelvic pain, and a history of dysmenorrhea with continued pain post menopause, were addressed as gynecological-related, and the examiner indicated that an additional in-person examination was required. There is no indication that that examination occurred, nor has it been scheduled by the RO. The Board notes that the RO was specifically required to schedule the Veteran for the VA examinations necessary, and this requirement was further required following the instructions from the July 2020 VA-contracted examiner. Furthermore, the Board has remanded this issue previously as the Veteran was not given an in-person examination, yet that has subsequently occurred again in July 2020. Finally, the July 2020 examiner only noted the diagnosis of GERD, and the additional diagnoses were not discussed. Importantly, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, the Board finds that the July 2020 examination is inadequate for determining the Veteran’s claim of entitlement to service connection. Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that she is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. Obtain all outstanding VA and/or private treatment records. For any private treatment records, obtain the appropriate signed releases from the Veteran, and associate any additional records with the claim. Should such records exist, associate them with the electronic claims file. 2. Schedule the Veteran for a VA examination (or telehealth interview(s), review(s) of the record, etc., if an in-person examination(s) is not feasible) by an appropriate clinician who has not previously examined the Veteran, to determine the nature and etiology of the Veteran’s claimed stomach disability, to include dysmenorrhea and/or gastroesophageal reflux disease (GERD). The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. After performing any/all necessary testing, including any required in-person evaluations, the examiner should provide responses to the following questions: (a.) For any diagnosed stomach and/or pelvic disability, the examiner is asked to address whether it is at least as likely as not (a 50 percent or greater probability) that any stomach and/or pelvic disability manifested in service or is etiologically related to service. Separate opinions must be provided for each diagnosed disability. The examiner is asked to discuss each of the diagnoses identified by the March 2019 examiner, the Veteran’s private treatment records, the Veteran’s February 2017 testimony, and the Veteran’s detailed accounts of the stomach and pelvic pain which she claims has continued since service. These diagnoses include, but are not limited to GERD, chronic constipation, leiomyoma of uterus with pelvic pain, and a history of dysmenorrhea with continued pain post menopause. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached, with a full and detailed rationale. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Thereafter, readjudicate the claims on appeal, and furnish the Veteran and her Representative a Supplemental Statement of the Case (SSOC) if any matter is not resolved to the Veteran’s satisfaction. Provide an opportunity to respond before the claim is returned to the Board. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, Associate 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.