Citation Nr: 1802978 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 12-21 068 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD). REPRESENTATION Veteran represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD K. Forde, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from February 2003 to January 2004 and June 2004 to June 2005, with service in Southwest Asia. He had additional service in the Army Reserve and National Guard. His decorations include the Combat Action Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In a December 2014 decision, in pertinent part, the Board awarded a 10 percent initial rating, but no higher, for the Veteran's service-connected GERD. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). In March 2016, the Court issued a memorandum decision vacating and remanding the Board's March 2016 decision to the extent it denied an initial rating in excess of 10 percent for GERD. In April 2017, the Board remanded the matter for additional development. The appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board regrets the additional delay caused by this remand. However, there are outstanding pertinent private treatment records that should be obtained. The May 2017 VA examination report reveals that the Veteran underwent a private barium swallow test in 2014. As this record may be material to the Veteran's claim and as he has identified the medical facility and time period where treatment took place, the appeal must be remanded so that these records may be obtained. 38 C.F.R. § 3.159(c). Any outstanding VA treatment records should also be secured. Further, the May 2017 VA examiner determined that the Veteran's sleep disturbances caused by his GERD occur four or more times per year, lasting for less than one day. He then notes that the Veteran reported nightly sleep disturbances, sometimes causing him to get up and use Tums. The Board finds the May 2017 opinion to be of limited probative value, as the examiner did not clarify the contradictory statements. Additionally, the examiner indicated that the Veteran does not miss work due to GERD, and thus found no impairment on his ability to work. However, the Board notes that the March 2012 VA examiner determined that his sleep disturbances interfered with his employment. On remand, the VA examiner must clarify whether the Veteran's sleep disturbances impact his ability to work. Accordingly, the case is REMANDED for the following actions: 1. With any necessary assistance from the Veteran, obtain all private treatment records from Lakeside, to include the 2014 barium swallow test report, as well as any other private medical provider who has treated the Veteran's GERD. If any records are unavailable, document this finding in the claims file and notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 2. Obtain any updated VA treatment records. 3. Then obtain an addendum opinion from the May 2017 VA examiner (or other qualified physician, if unavailable). The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were reviewed. No additional examination is necessary, unless the examiner determines otherwise. The examiner must determine whether the Veteran's esophageal reflux causes sleep disturbance, and if so, clearly describe the frequency and duration of the symptoms that cause such disturbance. Specifically, the examiner must clarify the contradictory report that the Veteran's sleep disturbances occur "four or more times per year" and the Veteran's report of "nightly" sleep disturbances. Additionally, the examiner should also indicate whether the Veteran's sleep disturbances impact his ability to work, and such opinion must be supported by rationale. The examiner must address the March 2012 VA examination findings that his sleep disturbances due to acid reflux interfered with his employment. A complete rationale should be provided for all expressed opinions. 4. Following the above development, if the record demonstrates that the Veteran's GERD causes sleep impairment that impacts his ability to work, the AOJ should refer the Veteran's claim to the Director, Compensation Service for an appropriate opinion pursuant to 38 C.F.R. § 3.321(b). 5. Then, after taking any additional development deemed necessary, readjudicate the issue on appeal. The Veteran has the right to submit additional evidence and argument on the matter 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 (2012). _________________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the Court. 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) (2017).