Citation Nr: 21067172 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 19-07 951 DATE: November 3, 2021 REMANDED Entitlement to a disability rating in excess of 40 percent for a service-connected digestive system condition is remanded. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1976 to April 1979, from February 1980 to January 1982, and from September 1987 to September 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2017 rating decision of the Department of Veterans Affairs (VA). In a January 2020 decision, the Board granted the issue of entitlement of a 40 percent disability rating for the Veteran's service-connected digestive system condition. The Veteran appealed the January 2020 decision, in part, to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Partial Remand (JMR) in December 2020, the Court vacated the Board's decision that denied a disability rating in excess of 40 percent for the service-connected digestive system condition and remanded the claim, in addition to the issue of entitlement to TDIU, to the Board for compliance with the terms of the JMR. Regarding the Veteran's claim for a higher disability rating for his service-connected digestive system condition, in its December 2020 JMR, the Court noted that the Board failed to explain why the Veteran's symptom combinations, to include continuous abdominal pain and periodic vomiting, were not productive of severe impairment of health or productive of definite impairment of health, as required by 38 C.F.R. § 4.114, Diagnostic Codes 7304 or 7346. Under Diagnostic Code 7304, a 60 percent rating is warranted for a severe duodenal ulcer with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health. Under Diagnostic Code 7346, a 60 percent rating is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. A review of the record shows that the Veteran was afforded a VA esophageal conditions examination in November 2017 and VA stomach and duodenal conditions and a VA intestinal conditions examination in December 2017. In his March 2019 Substantive Appeal, the Veteran indicated that his examinations were not adequately conducted, to include the VA examiners not considering the severity of his condition and the effects of pain medication he was using. In light of the forgoing, the Board finds that a new VA examination would assist in fully and fairly evaluating the Veteran's claim for an increased rating. Regarding the claim for entitlement to TDIU due to service-connected disabilities, the Board acknowledges that in Rice v. Shinseki, 22 Vet. App. 447 (2009), it was held that a claim for TDIU is part of an increased rating claim when such is raised by the record. In its December 2020 JMR, the Court noted the Board erred when it did not adjudicate the intertwined issue of TDIU. In its January 2020 decision, the Board indicated that the Regional Office had denied entitlement to TDIU in a December 2017 rating decision and did not adjudicate the issue in its decision. The Court noted that under its holding in Harper v. Wilkie, a denial of TDIU by the RO while an appellant's underlying increased rating claim is pending does not bifurcate the issue of TDIU from the increased rating claim. See Harper v. Wilkie, 30 Vet. App. 356, 359-60 (2018). In the December 2020 JMR, it was noted that the Veteran claimed entitlement to TDIU based on his service-connected disabilities, noting that he last worked in September 2015 and took early retirement due to his service-connected hearing loss, digestive condition, arthritis of the lumbar spine, and bilateral radiculopathy. In light of the forgoing, the Board finds that the issue of entitlement to TDIU must also be remanded. An opinion determining the combined functional effects of the Veteran's service-connected disabilities on his ability to secure or follow a substantially gainful occupation during the time period on appeal should be obtained. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his service-connected digestive system condition. The entire record must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should describe all symptoms associated with the Veteran's service-connected digestive system condition, as well as the severity of each symptom. The examiner should also address the functional effects caused by the Veteran's disability, to include any impact on his activities of daily living. In addressing such inquiries, the examiner should take into consideration all evidence of record, to include medical records as well as the Veteran's lay statements. The examiner should also specifically discuss the specific effects that the Veteran's digestive system condition has had on the ability to secure and follow substantially gainful employment without regard to age and nonservice-connected conditions, and with educational and vocational background considered. A complete rationale must be provided for all opinions expressed and conclusions reached. 2. Then, afford the Veteran a VA medical examination addressing the effects of his service-connected disabilities (a lumber back disability, bilateral lower extremity radiculopathy, pes planus with plantar fasciitis, bilateral hearing loss and tinnitus) have on his ability to secure and follow a substantially gainful occupation consistent with his education and occupational experience. When addressing the specific functional effects, the examiner must not consider the Veteran's age or any nonservice-connected disabilities. A complete rationale must be provided for all opinions expressed and conclusions reached. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Evans, A-L 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.