Citation Nr: 1550610 Decision Date: 12/02/15 Archive Date: 12/10/15 DOCKET NO. 05-35 860 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to a compensable rating for gastroesophageal reflux disease (GERD) from November 1, 2014. 2. Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from July 1962 to May 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2011 and May 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran's claim of entitlement to an increased rating for GERD was previously before the Board in September 2012, December 2013, and April 2015. The claim of entitlement to a TDIU was previously before the Board in April 2015. In September 2012, the Board denied the claim for an increased rating for GERD. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). The Court issued an Order granting a Joint Motion for Remand in May 2013 and vacated that portion of the Board decision which denied entitlement to a compensable rating prior to November 10, 2011, and in excess of 10 percent since November 10, 2011. In December 2013, the Board again denied the Veteran's claim for increased ratings for GERD. The Veteran once again appealed the denial of his claim to the Court. The Court issued an Order granting a Joint Motion for Remand in July 2014 and remanded that portion of the Board decision which denied the Veteran's claim for a rating in excess of 10 percent for GERD since November 10, 2011. In an August 2014 rating decision, the disability rating for the Veteran's GERD was decreased from 10 percent to noncompensably (0 percent) disabling effective November 1, 2014. In an April 2015 decision, the Board denied the claim for entitlement to a rating in excess of 10 percent for GERD from November 10, 2011, to November 1, 2014, and determined that the reduction from 10 percent to noncompensably disabling effective November 1, 2014 was proper. However, at that time the Board also remanded the claim for entitlement to an increased (compensable) rating for GERD from November 1, 2014, for additional development. The Board also remanded the claim for entitlement to a TDIU for additional development at that time. Of note, at the time of the April 2015 Board decision, a claim of entitlement to service connection for an acquired psychiatric disorder was also granted. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND As an initial matter, as noted in the introduction, the Board granted a claim of entitlement to an acquired psychiatric disorder in the April 2015 Board decision. However, it does not appear that the grant of this disability has been effectuated by the RO. Consequently, the grant of service connection for an acquired psychiatric disorder should be effectuated. With regard to the claim for an increased (compensable) rating for GERD since November 1, 2014, and entitlement to a TDIU, the Board remanded the claims in order to obtain additional evidence and to obtain a medical opinion with regard to TDIU and to afford the Veteran a VA examination with regard to GERD. Additional treatment records as well as a VA 21-4140, Employment Questionnaire were associated with the claims file. The Veteran was also afforded VA examinations for these claims in September 2015. In the April 2015 Board remand, the practitioner who proffered the TDIU opinion was requested to describe the functional impact of all of the Veteran's service connected disabilities on his employability. While the September 2015 VA examiner addressed most of the Veteran's service connected disabilities, the examiner failed to discuss the Veteran's service connected tinnitus. As such, the examiner should issue an addendum opinion including a statement regarding the functional impact, if any, of tinnitus on the Veteran's employability. Following the September 2015 VA examinations, the RO failed to issue a Supplemental Statement of the Case (SSOC) readjudicating the issues on appeal. Consequently, an SSOC should be issued after the addendum opinion for the TDIU claim is obtained. Accordingly, the case is REMANDED for the following action: 1. The RO should issue a rating decision and effectuate the grant of service connection for an acquired psychiatric disorder granted in the April 2015 Board decision. 2. Then, return the claims file to the VA examiner who conducted the September 2015 TDIU examination and request that the examiner submit an addendum opinion addressing the functional impact that the Veteran's service connected tinnitus considered with his other service connected disabilities have on his employability. The examiner should be specifically asked to describe the functional effects caused by the Veteran's service connected disabilities including tinnitus. If the September 2015 VA examiner is not available, the claims file should be submitted to another examiner with similar expertise. The examiner should be advised that as of October 12, 2012, the Veteran is service connected for coronary artery disease (60 percent disabling); tinnitus (10 percent disabling); diabetes mellitus type II (10 percent disabling); and GERD (noncompensably disabling). Additionally, the Veteran was granted service connection for an acquired psychiatric disorder in the April 2015 Board decision and service connection for diabetes mellitus was severed by an October 2015 rating decision effective February 1, 2016. If the examiner determines that another examination is necessary to provide the requested addendum opinion, the Veteran should be scheduled for an examination. 3. Then, readjudicate the issues on appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).