Citation Nr: 18144940 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 09-16 788 DATE: October 25, 2018 REMANDED The issue of entitlement to a rating higher than 50 percent for obstructive sleep apnea (OSA) is remanded. The issue of entitlement to a rating higher than 10 percent for gastroesophageal reflux disease (GERD) is remanded. REASONS FOR REMAND The Veteran had active service from October 1997 to August 2001. This matter is before the Board of Veterans’ Appeals (Board) on appeal from March 2009 and June 2010 rating decisions. The Board remanded this appeal in November 2013 and August 2015, and then, in a January 2017 decision, in pertinent part, denied the issues on appeal. The appellant appealed those denials to the United States Court of Appeals for Veterans Claims (Court). In a March 2018 Memorandum Decision, the Court vacated the portion of the Board’s January 2017 decision that denied higher ratings for OSA and GERD, and remanded it to the Board. The Board acknowledges that there is an additional issue on appeal, namely entitlement to an increased rating for hypertensive heart disease, that the Veteran has perfected. However, that issue has not yet been certified and is not yet ripe for Board review. Thus, that issue will be the subject of a later Board decision as appropriate. 1. The issue of entitlement to a rating higher than 50 percent for OSA is remanded. The Court found in its March 2018 Memorandum Decision that VA did not fulfill its duty to assist the Veteran because private treatment records appeared to remain outstanding. As such, the Board finds that remand of the Veteran’s OSA increased rating claim is necessary for further development of the record in order to ensure that all relevant outstanding private treatment records have been associated with the Veteran’s claim file. Updated VA records should also be obtained. 2. The issue of entitlement to a rating higher than 10 percent for GERD is remanded. In the March 2018 Memorandum Decision, the Court found that a May 2010 VA examination, a March 2014 examination, and an August 2015 addendum opinion, relied upon by the Board to deny the Veteran’s GERD increased rating claim in January 2017, were inadequate. Specifically, the Court found that the referenced examinations and opinion did not adequately address the nature or severity of the Veteran’s GERD symptoms when he was not taking medication. In this regard, the Court pointed out that the Board may not consider the ameliorative effects of medication where those effects are not explicitly contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Given the foregoing, the Board finds that remand for a new examination is necessary to determine the severity of the Veteran’s GERD disability when he does not take medication. The matters are REMANDED for the following action: 1. Ask the Veteran to identify and authorize VA to obtain any outstanding records documenting treatment by any private provider for OSA or GERD, to include records from Kaiser Permanente. After obtaining any necessary authorization forms from the Veteran, obtain any pertinent records identified and associate them with the claims file. Any negative responses should be in writing and should be associated with the claims file. In addition, associate all outstanding VA treatment records with the claims file. 2. Then, after the development requested in item 1 is completed to the extent possible, schedule the Veteran for a VA examination to determine the current severity of his GERD. The claims file must be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported. The examiner should identify all signs and symptoms attributable to the Veteran’s GERD, and attempt to describe the likely severity of the signs and symptoms were the Veteran to not take the medication he has been prescribed for control of his GERD symptoms, throughout the entire period on appeal (since February 2010). S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Fagan, Counsel