Citation Nr: 21010274 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-09 284 DATE: February 24, 2021 REMANDED Entitlement to an initial rating higher than 10 percent for hiatal hernia with gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for lumbar spine disability, including as due to service-connected bilateral knee disability, is remanded. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability is remanded. REASONS FOR REMAND In September 2020 the Veteran testified at a Board hearing before the undersigned Veterans Law Judge at the Board’s Central Office. At the hearing the undersigned received testimony on the issue of the initial rating for the Veteran’s bilateral knee disability, status post-left total knee arthroplasty (TKA) and revision. See 09/23/2020 Hearing Transcript, P. 1-10. A July 2013 rating decision granted service connection for the knee disability and assigned an initial 10 percent rating for each knee, which the Veteran appealed. See 07/01/2013 Rating Decision – Narrative; 12/03/2013 NOD. After issuance of a Statement of the Case (SOC), however, the Veteran indicated on his Substantive Appeal that he opted to perfect his appeal only as to the initial rating for his hiatal hernia/GERD and service connection for his lumbar spine disability. See 01/05/2017 SOC; 02/09/2017 VA Form 9; 04/25/2017 VA Form 8; see also 38 C.F.R. §§ 19.20, 19.22. The appeal period for perfecting the issue had expired at the time of the Board hearing. 38 C.F.R. § 19.52. Hence, the issue of the initial rating for the bilateral knee disability, status-post left TKA with revision is not before the Board and will not be discussed in the remand action below. The Veteran is at liberty to file a supplemental claim for an increased rating for his bilateral knee disability. 1. Entitlement to an initial rating higher than 10 percent for hiatal hernia with GERD is remanded. The Veteran testified at the Board hearing that the symptoms of his hiatal hernia with GERD have increased in severity since his last examination in 2013. See 09/23/2020 Hearing Transcript, P. 10-15. He is fully competent to testify to the symptoms that he experiences and to their severity. See 38 C.F.R. § 3.159(a)(2). Further, when there is evidence that a disability has worsened since the last examination of record, a current examination is needed. 2. Entitlement to service connection for lumbar spine disability, including as due to service-connected bilateral knee disability, is remanded. At the hearing the Veteran and his representative asserted that the Veteran also seeks service connection on a secondary basis. See 38 C.F.R. § 3.310. This theory of entitlement was not submitted to or adjudicated by the AOJ. Hence, it must be properly developed. See 38 C.F.R. § 3.159(c). 3. Entitlement to a TDIU is remanded. There is evidence in the file that the Veteran is unable to work due to his disabilities. Hence, the Board takes jurisdiction of the issue. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). It is intertwined with the increased rating and service connection claim and must also be remanded. The matters are REMANDED for the following action: 1. The AOJ shall ensure that all relevant treatment records related to the Veteran’s hiatal hernia with GERD that have been generated since January 2020 are added to the claims file. 2. After the above is complete, arrange an examination of the Veteran by an appropriate clinician to determine the current severity of his hiatal hernia with GERD. The clinician shall document all symptoms of the disability, to include an assessment of the occupational impairment of the disability. 3. The AOJ shall also arrange an examination of the Veteran by an appropriate clinician to determine if it is at least as likely as not (at least a 50 percent probability) that his lumbar spine disability is due to his service-connected bilateral knee disability. If not, then is it at least as likely as not that the service-connected bilateral knee disability worsens the lumbar spine disability? Inform the clinician that any worsening of the lumbar spine disability due to the bilateral knee disability need not be chronic or permanent. Any occupation impairment due to flare-ups in the lumbar spine disability caused by the bilateral knee disability is sufficient for an aggravating nexus. (Continued on the next page)   Inform the clinician further that the Veteran’s lay reports of his history must be considered, and that lay history may not be rejected solely because of the absence of contemporaneous medical documentation, unless the significance of such absence is explained. Further, the clinician must provide a complete explanation for any opinion rendered. 4. After all of the above is complete, adjudicate the intertwined issue of entitlement to a TDIU. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder 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.