Citation Nr: 21069433 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 15-10 491A DATE: November 18, 2021 REMANDED Entitlement to a rating in excess of 10 percent for the period prior to April 6, 2021 and a rating in excess of 30 percent for the period thereafter for gastroesophageal reflux disease (GERD) with esophageal gastritis is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1975 to August 1979 with an honorable discharge. He also had service from April 1980 to July 1986 with a discharge under other than honorable conditions. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held before the undersigned in August 2018. A transcript of the hearing is of record. This matter was previously before the Board in March 2019, September 2020, and March 2021 when it was remanded for further development. In May 2021, VA's Records Management Center sent the Veteran Freedom of Information Act (FOIA) acknowledgement letters acknowledging receipt of a May 2021 request for documents. However, a review of the Veteran's claims file reflects that a FOIA request had not been submitted and that a May 2021 clarification request from the Veteran's attorney regarding a notice of award of past due benefits was misinterpreted as a FOIA request. That clarification request was separately addressed by the RO. Thus, as the record does not reflect that there is an outstanding FOIA request, the Board will proceed with adjudication of the Veteran's claim. [The issues of entitlement to an increased rating for headaches and diabetes mellitus type II with erectile dysfunction and a total disability rating for individual unemployability (TDIU) are currently awaiting Board hearing action and will be the subject of a separate decision by the Veterans Law Judge who conducts a hearing in those matters.] Entitlement to a rating in excess of 10 percent for the period prior to April 6, 2021 and a rating in excess of 30 percent for the period thereafter for GERD with esophageal gastritis is remanded. Although the additional delay is regrettable, the Board finds an additional remand is required as there has not been substantial compliance with the March 2021 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not substantially complied with, the Board errs as a matter of law when it fails to ensure substantial compliance). In the March 2021 Board remand order, the Board directed the Agency of Original Jurisdiction to obtain an addendum opinion regarding the Veteran's GERD. Specifically, a VA examiner was asked to provide a retrospective opinion assessing the severity of the gastric and peptic ulcers noted in a March 2017 private treatment record and May 2017 VA treatment records. The examiner was asked to report all signs and symptoms associated with the ulcer, including completion of an appropriate Disability Benefits Questionnaire (DBQ). In April 2021, a VA examiner provided an opinion in which he explained that an EDG performed in March 2017 showed an ulcer, but May 2017 findings supported resolution of the ulcer. Although the examiner indicated that the ulcer had resolved, signs and symptoms associated with the ulcer while it was present is pertinent to the Veteran's claim. As this information was not provided, as requested, remand for an addendum opinion is required. The matters are REMANDED for the following action: Return the Veteran's claims file to the April 2021 VA examiner, or another examiner if he or she is unavailable, for an addendum opinion regarding the Veteran's GERD. The Veteran's claims file, including this remand, must be made available to the examiner for review. An examination (including via telehealth) should only be scheduled if the examiner deems one is necessary for providing the requested opinion. Following a review of the claims file, the examiner is asked to provide a retrospective opinion assessing the severity of the ulcer noted in a March 2017 private treatment record. The examiner should report any signs and symptoms associated with the ulcer, to include completion of the appropriate Disability Benefits Questionnaire. A complete rationale for all opinions expressed must be provided. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Jiggetts 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.