Citation Nr: 21067421 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-59 268 DATE: November 4, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for dysphagia is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from June 1969 to January 1972, including service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal of April 2014, June 2015, and January 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. In December 2019, the Board remanded the issues of entitlement to service connection for a right knee disability; abdominal pain; GERD; and for dysphagia, as well as an issue of entitlement to a TDIU, for further development. In December 2020, the Board again remanded the issues of entitlement to service connection for a right knee disability; abdominal pain; GERD; and for dysphagia, as well as an issue of entitlement to a TDIU, for further development. An August 2021 RO decision granted service connection and a 30 percent rating for irritable bowel syndrome, effective March 28, 2013. Therefore, the issue of entitlement to service connection for abdominal pain is no longer before the Board. This case was remanded in December 2020, partly to obtain a VA medical opinion addressing whether the Veteran's claimed right knee disability had its onset in, or was otherwise related to, service. The examiner was to specifically include a discussion of the Veteran's in-service account regarding carrying gear and jumps during training, and his contentions regarding his lack of treatment until 2014. Pursuant to the December 2020 Board remand, the Veteran was afforded a VA knee and lower leg conditions examination in July 2016. There is a notation that the Veteran's claims file was reviewed. The diagnoses were a right knee meniscal tear, and degenerative arthritis of the right knee, other than post-traumatic arthritis. The examiner indicated that the claimed condition was less likely than not (less than 50 percent probability) incurred in, or caused by, the claimed in-service injury, event, or illness. The examiner reported that a record review did not indicate in-service complaints, or a condition, of the right knee during the Veteran's service dates from 1969 to 1972. The examiner stated that an initial record of a knee condition was not until 2014. The examiner opined that no chronicity could be established. The Board observes that the examiner indicated that an initial record of a right knee condition was not until 2014. The Board notes, however, that a March 2008 VA pain evaluation consultation note indicates that the Veteran had chief complaints, including regarding his right knee. A diagnosis, as to the Veteran's right knee, was not provided at that time. Additionally, a November 2015 VA nurse practitioner follow-up note reflects that the Veteran was seen for new right knee pain, with collapse of the knee two weeks earlier, when standing. It was noted that the Veteran had a fall and daily pain, and that his right knee had been too painful to bend since that time. The impression was right knee pain and dysfunction, with the right knee too painful on each side to bend. The Board further observes that the examiner did not address the Veteran's in-service account regarding carrying gear and jumps during training, as well as his contentions regarding his lack of treatment until 2014, as requested in the December 2020 Board remand. The Board notes that the December 2020 Board remand also directed that the Veteran be afforded a VA examination (or telehealth interview, review of the record, etc., if an in-person examination was not feasible) regarding his claimed GERD and dysphagia. The examiner was to specifically address the Veteran's contentions of abdominal stress during service. The examiner was also to opine as to whether any diagnosed gastrointestinal disorder was caused or aggravated by the Veteran's service-connected unspecified depressive disorder, with insomnia. Pursuant to the December 2020 Board remand, the Veteran was afforded a VA esophageal conditions examination in July 2021. There is a notation that the Veteran's claims file was reviewed. The diagnosis was GERD. The examiner indicated that the claimed condition was less likely than not (less than 50 percent probability) incurred in, or caused by, the claimed in-service injury, event, or illness. The examiner specifically maintained that the claimed GERD and/or dysphagia were less likely than not (less than 50 percent probability) incurred in, or caused by, the claimed in-service injury, event, or illness. It was noted that the Veteran served from 1969 to 1972. The examiner reported that the earliest gastrointestinal complaint was in 2007, which was approximately thirty-five years without records indicating an in-service condition and/or condition developing in near proximity to discharge. The examiner stated that it was impossible to relate the Veteran's current condition of GERD to his military service. The examiner also indicated that the claimed condition was less likely than not (less than 50 percent probability) proximately due to, or the result of, the Veteran's service-connected condition. The examiner specifically maintained that the claimed GERD and/or dysphagia were less likely than not (less than 50 percent probability) proximately due to, or the result of, the Veteran's service-connected psychiatric condition. It was noted that the Veteran served from 1969 to 1972. The examiner stated that the earliest gastrointestinal complaint was in 2007, which was approximately thirty-five years without records indicating an in-service condition and/or a condition developing in near proximity to discharge. The examiner found that it was impossible to relate the Veteran's current condition of GERD to his military service. The examiner maintained that a nexus for GERD could not be assigned because of an inability to establish the baseline of the condition and the baseline of the psychiatric condition. The examiner further indicated that the claimed GERD and/or dysphagia were not at least as likely as not aggravated beyond their natural progression by the Veteran's military service. The examiner stated that the earliest gastrointestinal complaint was in 2007, which was approximately thirty-five years without records indicating an in-service condition and/or a condition developing in near proximity to discharge. The examiner reported that it was impossible to relate the Veteran's current condition of GERD to his military service. The Board observes that the examiner found that the Veteran's claimed GERD and/or dysphagia were less likely than not incurred in, or caused by, the claimed in-service injury, event, or illness. The examiner also stated that the Veteran's claimed GERD and/or dysphagia were less likely than not proximately due to, or the result of, the Veteran's service-connected psychiatric condition, and that such disorders were not aggravated beyond their natural progression by the Veteran's military service. The Board observes that the examiner did not address the Veteran's contentions of abdominal stress during service as requested in the December 2020 Board remand. Additionally, the Board notes that the examiner did not specifically address whether the Veteran's service-connected unspecified depressive disorder, with insomnia, aggravated his claimed GERD and dysphagia. The Board further notes that subsequent to the July 2021 a VA esophageal conditions examination report, the Veteran was service-connected for irritable bowel syndrome. Therefore, the Board observes that the examiner was not able to address whether the Veteran's service-connected irritable bowel syndrome caused or aggravated his claimed GERD and dysphagia. In El-Amin v. Shinseki, 26 Vet. App. 136 (2013), a decision issued by the United States Court of Appeals for Veterans Claims (Court), the Court vacated a decision of the Board where a VA examiner did not specifically opine as to whether a disability was aggravated by a service-connected disability. In light of the above, the Board finds that the Veteran must be afforded VA examinations with the opportunity to obtain responsive etiological opinions, following a thorough review of the entire claims file, as to his claims for service connection for a right knee disability; GERD; and for dysphagia. Such examinations must be accomplished on remand. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). Finally, as the Veteran's claim for a TDIU rating is inextricably intertwined with his claims for service connection, those matters must be addressed together on remand. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Ask the Veteran to identify all medical providers who have treated him for right knee problems; GERD; and for dysphagia, since January 2021. After receiving this information and any necessary releases, obtain copies of the related medical records which are not already in the claims folder. Document any unsuccessful efforts to obtain the records, inform the Veteran of such, and advise him that he may obtain and submit those records himself. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service symptoms regarding his claimed right knee disability; GERD; and dysphagia. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible), to determine the onset and etiology of his claimed right knee disability. The examiner must diagnose all current right knee disabilities. The examiner must opine as to whether it is as at least as likely as not that any currently diagnosed right knee disabilities are related to, and/or had its onset during, the Veteran's period of service, to include presumed exposure to Agent Orange during service. The examiner must also specifically acknowledge and discuss the Veteran's in-service account regarding carrying gear and jumps during training, and his contentions regarding his lack of treatment until 2014, as well as any reports by the Veteran of right knee problems during and since service. The examiner must further opine as to whether the Veteran's service-connected disabilities caused or aggravated any currently diagnosed right knee disabilities. 4. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible), to determine the onset and etiology of his GERD and dysphagia. The examiner must specifically indicate if the Veteran has currently diagnosed GERD and dysphagia. The examiner must opine as to whether it is as at least as likely as not that any currently diagnosed GERD and dysphagia, are related to, and/or had its onset during, the Veteran's period of service, to include presumed exposure to Agent Orange during service. The examiner must also specifically acknowledge and discuss the Veteran's contentions of abdominal stress during service, as well as any reports by the Veteran of symptoms he thought were due to his claimed GERD and dysphagia, during or since service. The examiner must further opine as to whether the Veteran's service-connected disabilities, to specifically include his service-connected unspecified depressive disorder, with insomnia, and irritable bowel syndrome, caused or aggravated any diagnosed GERD and dysphagia. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. D. Regan, 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.