Citation Nr: 22014785 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 12-04 936 DATE: March 15, 2022 REMANDED Entitlement to a compensable rating for esophageal spasms associated with gastroesophageal reflux disease (GERD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army on active duty from September 1988 to February 1992 and from December 1992 to July 1997. This appeal comes to the Board of Veterans' Appeals (Board) from September 2011 and March 2019 rating decisions by the Veterans Benefits Administration (VBA). The Board remanded the Veteran's claim for entitlement to TDIU in February 2015, September 2017, February 2018, and May 2020. In a November 2020 decision, the Board denied the Veteran's claims for entitlement to (1) a compensable disability rating for esophageal spasms associated with GERD, (2) an earlier effective date for service connection for esophageal spasms associated with GERD, and (3) TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC). In November 2021, the CAVC granted a Joint Motion for Partial Remand (JMPR), vacating the Board's decision on the issues of entitlement to a higher rating for esophageal spasms associated with GERD and TDIU. The CAVC remanded the matters to the Board for additional action consistent with the terms of the JMPR. The JMPR indicates that the Board failed to explain why the evidence does not support a "moderate" rating for the Veteran's disability and does not provide an explanation of how it defines "moderate" impairment or why it concluded that the evidence does not support a higher rating. The JMPR stressed the need for the Board to provide adequate rationale with consideration of the Veteran's lay statements. Additionally, the JMPR indicates that the Board erred when it applied the wrong standard when it denied TDIU predominantly because the Veteran held several jobs during the period on appeal. The JMPR notes that although the Board listed medical evidence of Veteran's impairment due to service-connected disabilities, it failed to consider the economic and noneconomic factors essential to a TDIU analysis. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The JMPR notes that the Board failed to address favorable evidence including an October 2017 statement in support of the claim describing how the Veteran's service-connected disabilities interfered with his ability to secure and follow a substantially gainful occupation and whether some of his employment was marginal. On remand, the JMPR indicates that the Board should provide an adequate statement of reasons or bases that addresses this evidence and consider whether the Veteran had marginal employment. Since the Veteran's last VA examination of his esophageal spasms associated with GERD in April 2018, the Veteran reported to his VA treatment providers that the severity of his disability has worsened. See, e.g., March 2020 Primary Care Note in the Veteran's VA treatment records. On remand, VBA should afford the Veteran a new examination of his disability to assess its current severity and address the concerns identified in the JMPR regarding consideration of the lay statements and providing more supporting rationale for the assessment of severity. The Board REMANDS these matters for the following actions: 1. VBA should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records, to include any outstanding private treatment records. VBA should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran's claims file. 2. After associating all outstanding relevant records with the Veteran's claims file, VBA should afford the Veteran a current examination of the severity of his service-connected esophageal spasms associated with GERD. The examiner should consider the Veteran's statements about his relevant symptoms over time. See, e.g., June 2020 Statement in Support of Claim. The examiner should provide rationale with citation to relevant evidence in support of the findings. For example, if the examiner finds the Veteran's disability is of moderate severity, the examiner should explain why it is not mild or severe. To the extent that the Veteran's disability has worsened or improved during the period on appeal, the examiner should specify the dates of the worsening and improvement with citation to supporting evidence. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy 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.