Citation Nr: 21012565 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-51 891 DATE: March 4, 2021 REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from June 1970 to February 1973. The Veteran testified at a hearing before the undersigned in December 2020. A transcript of the hearing has been associated with the claims file. 1. Entitlement to service connection for GERD is remanded. At the hearing, the Veteran reported that he received treatment through VA and through Veterans Choice done through VA. Review of the record does not show consistent treatment records dated since September 2017 and does not show any treatment records dated since March 2018. VA treatment records associated with the claims file indicate that treatment was provided through Veterans Choice and that records have been scanned into VISTA Imaging. VA treatment records show that the Veteran was treated by a Dr. F, for pulmonology, through Choice. The March 2018 treatment record, from Dr. F., indicates that it is a return visit note and indicates that the Veteran was being worked up gastroenterology at Providence Medical Center. Complete treatment records have not been obtained and associated with the claims file. Therefore, remand is necessary to obtain and associate with the claims file complete treatment records following receipt of any necessary authorization from the Veteran. The claim is also remanded to obtain a medical opinion that addresses whether the Veteran’s GERD is related to his service or is due to or aggravated by his service-connected disabilities. None of the examinations to date have discussed the Veteran’s in-service notations of epigastric distress and dyspepsia and the most recent August 2017 VA opinion used an incorrect standard for secondary service connection. 2. Entitlement to service connection for sleep apnea is remanded. The claim must be remanded because the medical opinions of record are inadequate. In August 2017, a VA examiner offered a negative nexus opinion on secondary service connection but used the incorrect standard for determining aggravation; beyond the natural progression. A March 2018 a private opinion notes that the Veteran’s reflux contributed to his frequent nighttime arousals, but did not address whether the sleep apnea is due to or aggravated by the Veteran’s service-connected disability or GERD. 3. Entitlement to a TDIU is remanded. The claim must be remanded because it appears there are outstanding treatment records, as discussed above. At the hearing the Veteran reported that he was unable to work due to his hearing disability and his frequent medical appointments. He reported that he last worked full time in 2000, last worked at all about two years prior, and that he was denied entitlement to Vocational Rehabilitation. The most recent VA Form 21-8940, Application for TDIU, was submitted in 2014. In March 2015, the Veteran indicated that he had significant loss of work due to his service-connected disabilities. His employment history subsequent to March 2015 is unclear. On remand, he should be asked to complete another VA Form 21-8940. Although VA Vocational and Rehabilitation records show that the Veteran was found not be feasible for employment and unable to return to suitable employment in June 2014, the determination was made considering factors beyond his service- connected disability and the Veteran has reported working mowing lawns since that time. Therefore, entitlement to TDIU must be remanded. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from September 2017 to the present. 2. Obtain and associate with the claims file all treatment records scanned into VISTA Imaging. 3. Provide the Veteran with a VA Form 21-8940, Application for TDIU and request that he submit the completed form, with all appropriate information. Thereafter, take all appropriate action on the TDIU claim. 4. Ask the Veteran to complete a VA Form 21-4142 for all private providers, including Providence Medical Center and Dr. F. Make two requests for the authorized records from all identified providers, including Providence Medical Center and Dr. F., unless it is clear after the first request that a second request would be futile. 5. After completion of the above, schedule the Veteran for examinations (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of any GERD and sleep apnea found to be present. Copies of all pertinent records must be made available to the examiner for review. Based on the examination and review of the record, the examiner must answer the following: (a) Identify any currently diagnosed GERD and sleep apnea disability. In so doing, the examiner must discuss whether the Veteran’s GERD disability is a separate disability from the currently service-connected duodenitis/gastritis. (b) Is it at least as likely as not that any currently diagnosed GERD and sleep apnea is related to an in-service injury, event, or disease? In rendering the opinion the examiner must comment on the Veteran’s dyspepsia and epigastric distress in service. (c) If any currently GERD and sleep apnea disability is not directly related to service, it is it at least as likely as not (1) proximately due to service-connected disability, including duodenitis/gastritis, or (2) aggravated by service-connected disability, including duodenitis/gastritis. Aggravation here is defined as any increase in disability. A complete rationale should be provided for all opinions expressed. 6. Confirm that the VA medical opinions provided comport with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. 7. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU. M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert J. Burriesci, 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.