Citation Nr: 22009331 Decision Date: 02/16/22 Archive Date: 02/16/22 DOCKET NO. 14-00 790 DATE: February 16, 2022 REMANDED Entitlement to a disability rating in excess of 10 percent for the Veteran's right lower extremity sciatic radiculopathy for the period prior to November 18, 2019, and in excess of 20 percent thereafter is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously denied the Veteran's claims in a September 2020 decision. The Veteran then appealed to the United States Court of Appeals for Veteran's Claims (Court), and in October 2021 the Court vacated the September 2020 Board decision, granted a joint motion for partial remand, and returned the case to the Board for action consistent with the joint motion for partial remand. Although the Board regrets further delay, remand is necessary to ensure compliance with previous remand directives and proper development. When there is not substantial compliance with Board remand requests, the Board errs as a matter of law when it does not ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Right Lower Extremity Radiculopathy Initially, the Board notes that the record for review may be incomplete. Specifically, the Board notes that there are VISTA scanning exceptions noting records that are relevant to the Veteran's right lower extremity radiculopathy claim. A February 2020 VA treatment record noted an assessment of lumbar radiculopathy and that the VA had received medical documentation to be scanned from the Southwest Florida Pain Center. Further, there is a February 2020 non-VA scanning notation for 10 visits from Fitness Quest PT for lower back pain. Additionally, the VA record identified relevant private treatment records. A March 2020 VA treatment record noted that the Veteran established care with a non-VA pain clinic where he had a back injection, noted further right leg problems, and noted that he gets his medication from a non-VA provider. Further, the record indicated that the Veteran pays out of pocket to go to a foot, ankle, and vein Clinic with Dr. L. However, these records have not been associated with the claims file. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. The Board reminds the Veteran that the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, it is incumbent upon him to cooperate with the VA in developing his claims, consistent with the directives discussed below. GERD Initially, the Board also notes that the record for review may be incomplete. March 2014 VA treatment records noted that outside reports were reviewed, and that the Veteran was treated by both Dr. P. and Dr. K. with the Millennium Physician Group for multiple complaints, including abdominal pain, headaches, dizziness, and congestion. However, these records have not been obtained and no effort has been made to locate them. Further, the Veteran had a colonoscopy performed in 2008 at Charlotte Regional, however, records related to the 2008 colonoscopy were not obtained. Finally, the VA did not obtain the Veteran's 1995 treatment records for GI symptoms in New Jersey. While the record indicated that the VA attempted to obtain records from East Orange VAMC in March 2019, they were unable to locate records from January 1995 to present. However, in light of the fact that treatment for the Veteran's GI dated to 1995 was noted in the Veteran's prior VA records, the VA should have made further efforts to find the location in New Jersey where the Veteran received treatment, to include sending another request to the Veteran in accordance with 38 C.F.R. § 3.159(e)(2). Additionally, the Board notes that the Veteran's January 2019 VA Intestinal Conditions examination is inadequate. Specifically, the medical evidence of record contradicts the examiner's finding that the Veteran did not have a currently diagnosed GERD disability. See June 2018 VA treatment notes (indicating the Veteran has "GERD with esophagitis"); December 2016 Treatment Record (listing GERD as a diagnosis); June 2016 VA Primary Care treatment note (noting GERD as one of the Veteran's conditions). Based upon the above, the VA examiner did not provide an adequate rationale for their opinion and therefore did not adequately assess whether the Veteran's claimed GERD disabilities was related to his active-duty service. As such, the Board finds that a new examination and opinion is necessary. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding treatment records pertinent to the Veteran's issues on appeal. Specifically, the RO should attempt to obtain/locate the Veteran's Medical Documentation from the Southwest Florida Pain Center; the records from Fitness Quest PT; the relevant private treatment records from the Non-VA pain clinic identified in the March 2020 VA treatment record; the Veteran's treatment records from Dr. L.; the Veteran's Millennium Physician Group treatment records, to include treatment from Drs. P. and K.; the Veteran's 2008 colonoscopy at Charlotte Regional; the Veteran's New Jersey treatment records for GI symptoms; and any other records identified in the October 2021 Joint Motion for Partial Remand. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain the Federal records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. If needed, the RO should contact the Veteran and ask him to better identify and/or submit the records. If any requested records are not available, the record should be annotated to reflect such, and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Afford the Veteran a VA examination by an examiner, who has yet to examine the Veteran, with sufficient expertise to address the etiology of the Veteran's claimed GERD. The electronic records should be made available to and reviewed by the examiner. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state whether the Veteran's GERD at least as likely as not (a 50 percent probability or greater): originated during his period of active service or is otherwise etiologically related to his active service. The examiner must also opine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's GERD disability is proximately due to, or aggravated by, his service-connected disabilities, to include the medication taken for his back disability. The Board notes that aggravation need not be a permanent worsening of the disability. A temporary worsening of a disability may constitute aggravation. For purposes of these opinions, the examiner should assume that the Veteran is a reliable historian and must not ignore the Veteran's competent reports of in-service injuries, or of symptoms experienced during active service and since. In this regard, the examiner must discuss and consider the Veteran's competent lay statements. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete answer as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.