Citation Nr: 21000083 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 14-24 963 DATE: January 4, 2021 REMANDED Entitlement to a temporary rating of 100 percent for the period of convalescence from August 24, 2014, to September 24, 2014, for surgery on residuals of first and third metatarsal fractures of the right foot is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1968 to June 1970. 1. Entitlement to a temporary rating of 100 percent for the period of convalescence from August 24, 2014, to September 24, 2014, for surgery on residuals of first and third metatarsal fractures of the right foot is remanded. In a February 2020 remand, the Board instructed the Agency of Original Jurisdiction (AOJ) to obtain a VA medical opinion to determine whether the Veteran’s August 24, 2014, bunionectomy is at least as likely as not related to his service-connected residuals of the first and third metatarsals of the right foot. In a February 2020 opinion, a VA examiner determined that the bunionectomy is less likely than not related to the service-connected residuals of the first and third metatarsals of the right foot. The examiner noted that “there is no evidence in the provided records that the remote fractures noted in 1971 on a military radiograph report were in any way related to the bunionectomy performed in 2014.” This rationale is inadequate for rating purposes. On remand, the AOJ must obtain an addendum opinion with a rationale that discusses why or why not the August 24, 2014, bunionectomy is at least as likely as not related to the service-connected residuals of the first and third metatarsals of the right foot, and whether the service-connected residuals aggravated the underlying cause of the bunionectomy. 2. Entitlement to service connection for GERD is remanded. In a February 2020 remand, the Board instructed the AOJ to obtain a VA medical opinion to determine whether the Veteran’s GERD is at least as likely as not etiologically related to active duty service. The Board instructed the examiner to address the Veteran’s testimony regarding symptomology beginning during service, and the Board “specifically requested to discuss whether there is any medical reason to accept or reject the Veteran’s belief that experiencing heartburn during service represented the onset of GERD during service” (emphasis in the original). In a February 2020 opinion and April 2020 addendum opinion, a VA examiner determined that the Veteran’s GERD is less likely than not etiologically related service. The Veteran stated that “[h]eartburn is a common complaint that almost everyone on the planet experiences.” This rationale is inadequate for rating purposes. On remand, the AOJ must obtain an addendum opinion with a rationale that discusses this specific Veteran’s testimony regarding in-service symptomology, including heartburn, in light of his current diagnosis of GERD. 3. Entitlement to a TDIU rating is remanded. The Veteran has contended that he is unemployable because of his service-connected disorders. See August 2018 VA Examination. Because a decision on the remanded issues could significantly impact a decision on the issue of entitlement to a TDIU rating, the issues are inextricably intertwined. A remand of the claim for a TDIU is required. The Board notes that, in accordance with the February 2020 remand instructions, the AOJ sent the Veteran a February 2020 letter advising him of the information and evidence needed to award a TDIU rating. The Veteran has not responded to that request. On remand, the Board requests that the AOJ send such a letter again to provide the Veteran an additional opportunity to respond. The Board reminds the Veteran that the duty to assist the Veteran in the development of evidence pertinent to his claim is not a “one-way street,” and his failure to provide the necessary information within his possession prevents VA from assisting him in this matter. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The matters are REMANDED for the following action: 1. Obtain VA treatment records since April 2020 and associate them with the claims file. 2. Send the Veteran a letter advising him of the information and evidence needed to award a TDIU rating. This letter should also request that he complete VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, in order to provide the information needed to substantiate the claim of TDIU. 3. Forward the claims folder to a qualified examiner other than the February 2020 examiner for an addendum opinion regarding whether the Veteran’s August 24, 2014, bunionectomy was at least as likely as not (i.e., a 50 percent or greater possibility) etiologically related to the service-connected residuals of first and third metatarsal fractures of the right foot. In providing this opinion, the examiner should also address whether the service-connected residuals of first and third metatarsal fractures of the right foot caused or aggravated (a discernible increase in disability even if temporary) the underlying cause of the Veteran’s bunionectomy. If an examination is needed, one should be scheduled. All opinions expressed must be supported by complete rationale. 4. Forward the claims folder to a qualified examiner other than the February 2020 examiner for an addendum opinion regarding the nature and etiology of the Veteran’s GERD. The examiner should opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater possibility) that the Veteran’s diagnosed GERD had its onset during active duty, or is otherwise etiologically related to his active duty service. The examiner should consider the following: • August 2018 VA examination diagnosing GERD; • the Veteran’s January 2017 Board hearing testimony that GERD symptomology such as heartburn first began during service; and • February 1970 service treatment records reflecting treatment for acute gastroenteritis The examiner is specifically requested to discuss whether there is any medical reason to accept or reject the Veteran’s belief that experiencing heartburn during service represented the onset of GERD during service. The examiner is specifically requested to provide a rationale that addresses symptomology and GERD as it specifically relates to this Veteran’s experience of heartburn during service and current diagnosis of GERD. If an examination is needed, one should be scheduled. All opinions expressed must be supported by complete rationale. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Howell, 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.