Citation Nr: 21029131 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-07 870 DATE: May 12, 2021 REMANDED Entitlement to service connection for a left clavicle disorder is remanded. Entitlement to service connection for temporomandibular joint (TMJ) dysfunction is remanded. Entitlement to an initial compensable evaluation for rhinitis is remanded. Entitlement to a initial compensable disability rating prior to September 10, 2020 for a right gastrocnemius muscle injury is remanded. Entitlement to a rating in excess of 30 percent from September 10, 2020 for a right gastrocnemius muscle injury is remanded. Entitlement to an initial rating in excess of 30 percent from May 29, 2013 to September 9, 2020 for migraine headaches is remanded. Entitlement to service connection for abdominal disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from May 2007 to May 2013. The Board has recharacterized what the AOJ had characterized as a stomach disorder in their August 2014 rating decision back to the Veteran's claim for abdominal pain as noted her April 2013 claim for benefits. 1. Entitlement to service connection for a left clavicle disorder and TMJ dysfunction. The Board notes that the Veteran was provided with a VA examination for both her left clavicle disorder and her TMJ dysfunction. While these VA examinations noted that the Veteran had pain in her left clavicle and TMJ respectively, they did not provide opinions as to a potential relationship between these conditions and the Veteran's service. It is also noteworthy that both these examinations were performed in March 2014, less than a year from the Veteran's separation from service in May 2013. The United States Court of Appeal for Veterans Claims has held that that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). As these examinations were, in part, inadequate, the Board finds that new VA examination are warranted. 2. Entitlement to an initial compensable disability rating for rhinitis, a compensable disability rating prior to September 10, 2020 and in excess of 30 percent thereafter for a right gastrocnemius muscle injury and entitlement to an initial rating in excess of 30 percent from May 29, 2013 to September 9, 2020 for migraine headaches. In November 2018, the Board remanded the matter to the AOJ for further evidentiary development, included in this remand was a specific directive: A specific request should be made for any private treatment records from the Veteran's private primary care physician, as referenced in an April 2016 VA treatment note. (Emphasis is original). Regrettably, the AOJ did not comply with this directive and no such request for these records was made. The Board is obligated by law to ensure that the AOJ complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). As such, the Board finds that the AOJ should comply with this directive and specifically request said records. 3. Entitlement to service connection for an abdominal disorder. The Board notes that the Veteran's claim for an abdominal disorder was returned to the Board, but this claim was not readjudicated after the Board November 2018 remand. Moreover, upon further review of the evidence, the Board finds that a VA examination should be provided to the Veteran to address her contention that her abdominal pain is related to her service. The Board notes that the Veteran's service treatment records include a notation that she was prescribed Dicyclomine, medication to treat irritable bowel syndrome (IBS) in August 2009 and Nexium, medication to treat gastroesophageal reflux disease (GERD) in October 4, 2010. Additionally, the Veteran's February 2021 VA treatment records include a notation that she has GERD. Considering these pieces of evidence, the Board finds that a VA examination is warranted to further explore the Veteran's contention that her abdominal disorder is related to her active duty service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for her disabilities. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. A specific request should be made for any private treatment records from the Veteran's private primary care physician, as referenced in an April 2016 VA treatment note. 2. After the above development is accomplished, schedule the Veteran for appropriate VA examinations. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiners as part of the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All tests, studies, and evaluations should be performed as deemed necessary by the examiners, and the results of any testing must be included in the examination report. (A) LEFT CLAVICLE: After considering the pertinent information in the record in its entirety, the VA examiner should identify any left clavicle disability present. Then, the examiner is asked to opine as to whether it is at least as likely as not i.e. 50 percent probability or greater, that any left clavicle disability identified was incurred or aggravated by her active duty. In providing an opinion, the examiner should take a detailed history from the Veteran regarding the onset of this disability and any continuity of symptoms since that time. The examiner should take note that the Veteran's previous VA examination which did not provide an etiology opinion in March 2014 was provided within a year of the Veteran's separation from service in May 2013. (B) TMJ DYSFUNCTION: After considering the pertinent information in the record in its entirety, the VA examiner should identify any TMJ dysfunction. Then, the examiner is asked to opine as to whether it is at least as likely as not i.e. 50 percent probability or greater, that any TMJ dysfunction identified was incurred or aggravated by her active duty. In providing an opinion, the examiner should take a detailed history from the Veteran regarding the onset of this disability and any continuity of symptoms since that time. The examiner should take note that the Veteran's previous VA examination which did not provide an etiology opinion in March 2014 was provided within a year of the Veteran's separation from service in May 2013. (C) ABDOMINAL DISORDER: After considering the pertinent information in the record in its entirety, the VA examiner should identify any abdominal/gastrointestinal disorders present, to include GERD and IBS. Then, the examiner is asked to opine as to whether it is at least as likely as not i.e. 50 percent probability or greater, that any abdominal disorder present, to include GERD or IBS, was incurred or aggravated by her active duty. In providing an opinion, the examiner should take a detailed history from the Veteran regarding the onset of this disability and any continuity of symptoms since that time. The examiner should address that the Veteran service treatment records include notation that she was prescribed Dicyclomine, medication to treat irritable bowel syndrome (IBS) in August 2009 and Nexium, medication to treat gastroesophageal reflux disease (GERD) in October 4, 2010. 3. Ensure that the examination report complies with this remand and the questions presented in this request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 4. After completing the requested actions and any additional notification and/or development deemed warranted, such as additional examinations, readjudicate the issues on appeal. GAYLE E. STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Acosta, 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.