Citation Nr: 21074735 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 12-22 294 DATE: December 16, 2021 REMANDED Entitlement to service connection for residuals of traumatic brain injury (TBI) is remanded. Entitlement to an increased rating for hiatal hernia and gastroesophageal reflux disease (GERD), rated as 60 percent disabling prior to October 1, 2013 and in excess of 10 percent from that date forward, to include propriety of the rating reduction, is remanded. Entitlement to an increased rating for mechanical thoracic back pain, rated at 10 percent disabling prior to January 4, 2011, and in excess of 20 percent from that date forward, is remanded. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU), is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1983 to May 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The claims were previously remanded by the Board in December 2016. In January 2016, the Veteran testified at a Board hearing before a Veterans Law Judge who is no longer employed at the Board. In August 2021, the Veteran was given an opportunity to request another hearing, and he was advised that if he did not reply within 30 days, the Board would proceed with adjudication of his claim. To date, no response has been received. As such, adjudication of the instant appeal may proceed. The Board notes that the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder was granted during the appeal. As this grant represents a full grant of the benefits sought, this issue is no longer on appeal. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). 1. Entitlement to service connection for residuals of TBI is remanded. The Board previously remanded this claim in July 2016 to determine, in part, whether the Veteran's complaints of memory loss, peripheral vision issues, or pituitary adenoma were residual symptoms of his reported TBI. He has reported head injury as a result of multiple parachute jumps. While the post-remand May 2021 VA examination addresses the Veteran's reported symptoms, the medical nexus opinion does not address whether or not the Veteran's reports of memory loss, peripheral vision issues, or pituitary adenoma are sequalae of his TBI. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). As the opinion does not comply with the Board's prior remand directives, an addendum opinion is needed for substantial compliance. Additionally, the May 2021 opinion that links the Veteran's headaches and residual loss of smell to service relies on the fact that the Veteran's STR's (service treatment records) are silent for head injury. Yet, the opinion does not address the Veteran's reports of residual headaches at separation. More specifically, the Veteran reported at retirement than he had been knocked out and lost consciousness for short periods of time during his active duty in airborne operations. As the claim is being remanded, the addendum opinion should address an accurate history of reported head injury during the Veteran's active duty service. Moreover, as the Veteran has been service connected for an acquired mental disorder, the addendum opinion should address all of the Veteran's TBI symptoms and determine whether or not they are separate and distinct from his PTSD. While there is already a May 2021 VA conflicting evidence opinion as to whether there is any overlap with the Veteran's PTSD and TBI residuals, the Board does not find this opinion is adequate for adjudication, as it relies on the Veteran not having an appropriate diagnosis for PTSD. Yet, the Veteran has already been service connected for PTSD, so his diagnosis is not at issue. Moreover, it improperly discounts the Veteran's lay assertions without any reason, other than they are lay and not objective or medical. As such, the opinion is inadequate, and an addendum opinion is needed. 2. Entitlement to an increased rating for hiatal hernia and GERD, rated as 60 percent disabling prior to October 1, 2013 and in excess of 10 percent from that date forward, to include propriety of the rating reduction, is remanded. The Veteran filed for increase for this disability in June 2010. The Board remanded this claim in July 2016 so that the Veteran could undergo a VA examination that reflects the current severity of his disorder. The remand directives requested the VA examiner to specify whether the Veteran's symptoms result in impairment of health, including whether they would be best characterized as productive of considerable or sever impairment of health. The examiner was also asked to discuss the effects of the disorder on the Veteran's employability, activities of daily living, social life, and family life. The April 2021 VA examination does not specify whether or not the Veteran's has symptoms productive of considerable impairment or severe impairment. While the DBQ asks if his symptoms include these options of considerable or severe impairment of health, the examiner left the options blank. Yet, it was later remarked that the Veteran's symptoms had worsened. It is not clear whether this worsening includes symptoms severe enough to impair the Veteran's health and warrant a claim for increase. Accordingly, a remand is needed for substantial compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). This inquiry is pertinent as the Veteran was previously rated at 60 percent, which is consistent with symptoms of severe impairment, and the issue of the reduction is before the Board. Moreover, the specifics as to the effects of the disorder on the Veteran's employability, activities of daily living (ADL's), social life, and family life, were not addressed by the DBQ. The examiner only noted that the Veteran's disorder did not impact his ability to work. As such, on remand the effects as to the Veteran's ADL's, social life, and family life should also be addressed. 3. Entitlement to an increased rating for mechanical thoracic back pain, rated at 10 percent disabling prior to January 4, 2011, and in excess of 20 percent from that date forward, is remanded. The Veteran filed for increase to his back disorder in January 2011. The previous Board remand requested that the examiner address the effects of the back disorder on the Veteran's employability, activities of daily living, social life, and family life. While specifics were given as to the functional impact of the back disorder, the examiner did not address the effect on the Veteran's ADL's, social life, and family life. Notably, the Veteran testified at his Board hearing that he can no longer do certain ADL's because of the severity of his back pain. As such, a remand opinion is needed for compliance with the Board's prior remand instruction. Stegall v. West, 11 Vet. App. 268 (1998). 4. Entitlement to TDIU is remanded. Any decision on the service connection and increased rating claims being remanded herein may affect the claim for a TDIU. Consideration of entitlement to a TDIU must therefore be deferred until the intertwined issues are resolved or prepared for appellate consideration. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a VA examiner for a VA medical opinion regarding the nature and etiology of the Veteran's reported brain disorder and any residual sequalae. The electronic claims file must be made available to the examiner. If the examiner determines that another VA examination is necessary, one should be scheduled. Based on a review of the record, and a new examination if necessary, the examiner must address the following: Whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran presently suffers, or has suffered at any time since service discharge, from residuals of inservice head injury/concussion? If so, the opinion should differentiate the sequalae from this head injury and the Veteran's service-connected acquired psychiatric disorder. The opinion should directly address the Veteran's November 2003 post-deployment report of experiencing dizziness, fainting, and lightheadedness during his deployment; and his February 2004 retirement examination where he reported frequent headaches after jumps and was sometimes "knocked out for short periods." As previously requested by the Board, the examiner should consider and discuss, among other things, the Veteran's assertions that he has memory loss, peripheral vision issues, and a pituitary adenoma due to his hitting his head in his multiple parachute jumps. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide reasons as to why such speculation would be required. A complete rationale for all opinions expressed must be provided. 2. Obtain an addendum opinion from a VA examiner for a VA medical opinion regarding the nature and severity of the Veteran's GERD disorder. The electronic claims file must be made available to the examiner. If the examiner determines that another VA examination is necessary, one should be scheduled. Based on a review of the record, and a new examination if necessary, the examiner must address the following: Whether the Veteran's symptoms result in the impairment of the Veteran's health, including whether they would be best characterized as productive of considerable or severe impairment of health? Describe the effects of the Veteran's GERD disorder, in and of itself, on his employability, activities of daily living, social life, and family life. Any allocation of symptoms or findings of the Veteran's current condition must be sufficiently explained. 3. Obtain an addendum opinion from a VA examiner for a VA medical opinion regarding the nature and severity of the Veteran's back disorder. The electronic claims file must be made available to the examiner. If the examiner determines that another VA examination is necessary, one should be scheduled. Based on a review of the record, and a new examination if necessary, the examiner must address the following: The effects of the Veteran's mechanical thoracic back pain, in and of itself, on his employability, activities of daily living, social life, and family life. Any allocation of symptoms or findings of the Veteran's current condition must be sufficiently explained. N. NELSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Wade 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.