Citation Nr: 21067327 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-07 488 DATE: November 3, 2021 REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD), also claimed as diverticulitis, gastritis, intestinal condition, and esophageal condition, is remanded. Entitlement to higher ratings for posttraumatic stress disorder (PTSD), currently evaluated as 50 percent disabling prior to June 14, 2018 and 70 percent thereafter, is remanded. Entitlement to a total disability rating based on individual employability (TDIU) due to service-connected disabilities prior to March 31, 2017 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1968 to August 1971, including foreign service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Bronze Star Medal, and the Vietnam Service and Campaign Medals. These appeals were previously remanded by the Board in May 2020 for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Although the Board sincerely regrets the additional delay this will cause, further remand is required at this time. First, the claims file contains a February 2020 Social Security Administration (SSA) report noting that the agency has no medical records for the Veteran in its possession. However, a January 2021 letter from the Veteran's representative includes an SSA earnings records, and it is unclear whether this relates to SSA disability benefits. Clarification is required on this matter. Next, in an August 2021 lay statement, the Veteran reported preexisting symptoms and treatment related to the claimed GERD. The records does not contain the identified treatment records, nor have any efforts been made to obtain them. Such action is required on remand. Further, the claims file contains a series of VA nexus opinions pertinent to the pending GERD claim. See VA opinions October 2020. These opinions are inadequate upon which to adjudicate this appeal, as they do not address all theories of entitlement as presented by the record and utilize an improper definition of "aggravation." Accordingly, an addendum opinion is required. Finally, the Veteran does not meet the minimum schedular criteria for a TDIU prior to March 31, 2017. The Board may not award an extraschedular TDIU without first referring the issue to the Director, Compensation and Pension Service. The Board explicitly makes no finding as to whether a TDIU on an extraschedular basis is warranted. Instead, in the interest of judicial economy, as the case must be remanded, an opinion should be sought from the Director in order to preserve all possible options for the Board when (or if) the case returns from remand. Briefly, the Board also notes that the Veteran submitted an April 2021 claim seeking service connection for a heart disorder. The Board is precluded from referring this claim to the Agency of Original Jurisdiction (AOJ), as the appeal streams exist under separate appellate systems, but notes for the parties that further action may be required. The matters are REMANDED for the following actions: 1. Clarify whether the Veteran's reported SSA earnings related to an award of disability benefits. If so, obtain any medical records of the Veteran's in the care of the SSA which are relevant to the pending claims, and associate them with the claims file. 2. Contact the Veteran and request that he provide authorization for release of his May 1968 treatment records from the Herbert Thomas Memorial Hospital in Charleston, WV to VA. All actions to obtain the requested records should be fully documented in the record. The RO must make two attempts to obtain any private records identified, unless the first attempt demonstrates that further attempts would be futile. If private records are identified, but not obtained, the RO must notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain them, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained, the claim may be readjudicated. 3. Obtain an addendum opinion regarding the etiology of the Veteran's GERD. If the examiner determines that such an opinion may not be offered without first examining the Veteran, an examination should be scheduled. The claims file and a copy of this remand must be made available for review. In particular, the examiner is asked to offer medical opinions as to: (A) Opine whether it is clear and unmistakable (obvious and manifest) that the Veteran's GERD existed prior to service. In doing so, the examiner must explicitly account for the Veteran's reports of May 1968 hospital treatment for relevant symptoms. (I) If so, opine whether it is clear and unmistakable (obvious and manifest) that the preexisting disability was not aggravated by service. In other words, is it clear and unmistakable that any worsening of the disability was due to the natural progression of the disability? (II) If not, address whether: (a) It is at least as likely as not (50 percent probability or more) that the condition began in service, was caused by service, or is otherwise related to service, including the nature of the Veteran's service in Vietnam (including the consumption of horsemeat and in-service treatment for possible pneumonia); and (b) it is at least as likely as not that the disorder was caused or aggravated by the Veteran's service-connected PTSD, sleep apnea, or the treatment thereof. In formulating the opinions, the examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A finding of "aggravation" does not require a permanent worsening of the disorder; rather, any incremental increase in a nonservice-connected condition attributable to a service-connected disability, whether permanent or not, constitutes aggravation. Ward v. Wilkie, 31 Vet. App. 233, 240 (2019). A complete rationale should be provided for all opinions or conclusions expressed. It should be noted that the Veteran was competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (Continued on next page) 4. Refer the issue of whether a TDIU is warranted prior to March 31, 2017 to VA's Director of Compensation Service for consideration on an extraschedular basis. Include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b). Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.