Citation Nr: 22015489 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 17-60 318 DATE: March 17, 2022 REMANDED Entitlement to service connection for esophagus injury residuals is remanded. Entitlement to a temporary total disability rating due to surgery necessitating at least one-month convalescence for esophageal injury residuals is remanded. REASONS FOR REMAND The Veteran had active service from February 1973 to December 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal of the August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In January 2020, the Board remanded the issues on appeal for additional development. In the March 2021 decision, the Board denied the Veteran's claim for entitlement to service connection for esophagus injury residuals. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In November 2021, the parties filed a Joint Motion for Partial Remand (JMPR) moving for vacatur of the March 2021 decision's denial of entitlement to service connection for esophagus injury residuals. On November 24, 2021, the Court issued an Order granting the JMPR and remanding the matter to the Board for further development and proceedings pursuant to 38 U.S.C. § 7252(a). 1. Entitlement to service connection for esophagus injury residuals is remanded. The Veteran contends his esophagus condition is the result of a motorcycle accident during active service. Pursuant to the JMPR, the parties agreed that the Board erred by failing to provide an adequate statement of reasons or bases regarding the Veteran's lay statements. Specifically, during the October 2019 Board hearing the Veteran testified that he was involved in a motorcycle accident in service where he injured his cheekbone, back, and his skin was "jarred loose...up under [his] chin. He further testified that after the accident he had problems swallowing, and that he has experienced these problems since service. He explained that although he experienced these symptoms during service, at the time, he "was young and didn't pay attention to" them. He testified that his symptoms "got worse as [he] got older [such] that [food] started coming back up." The Veteran's treatment records show that in 2012 he began having trouble swallowing, decades after separating from service. The Veteran was diagnosed with achalasia, esophageal dysmotility and GERD. In March 2014, the Veteran had surgery to treat his heller myotomy for achalasia, dysphasia, and gastroesophageal reflux disease. The Board remanded this matter in January 2020 because the Veteran testified that, after the motorcycle accident, he was first treated at an Italian Naval Hospital before being transferred back to his ship for further treatment. The service treatment records show that the Veteran was involved in a motorcycle accident in 1973, but they do not show that the Veteran reported esophageal symptoms at that time, or during the remainder of his active service. The records did not show that efforts were made to identify and obtain records from the Italian Naval Hospital the Veteran referenced at the Board hearing, which possibly may have substantiated the Veteran's assertion that he had esophageal symptoms after the documented in-service motorcycle accident. The AOJ sent the Veteran letters on January 24, 2020, and February 6, 2020, in order to obtain authorization and information from the Italian Naval Hospital on the Veteran's behalf. The Veteran did not respond to these requests. In this regard, the Board notes that the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App.190, 193(1991). The Board finds that a remand is necessary to give the Veteran an opportunity to provide help secure medical records that could substantiate his claim and secure a medical opinion to address the Veteran's lay statements. 2. Entitlement to a temporary total disability rating due to surgery necessitating at least one-month convalescence for esophageal injury residuals is remanded. The Veteran seeks entitlement to a temporary total disability rating for a period of convalescence following a Heller myotomy for achalasia, dysphasia, and gastroesophageal reflux disease that was performed in March 2014. Whether such a benefit may be granted depends on whether the Veteran is granted entitlement to service connection for an esophageal condition. As such, a decision on the remanded issue of entitlement to service connection for a disability of the esophagus could significantly impact a decision on the issue entitlement to a temporary total disability rating, and the issues are inextricably intertwined. A remand of the claim for entitlement to a temporary total disability rating is therefore required. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the Italian naval hospital where he reportedly was treated immediately following his in-service motorcycle accident. Make two requests for any records so authorized unless it becomes clear after the first request that a second request would be futile. If the authorized records cannot be obtained, then the Veteran should be sent a notification letter in accordance with 38 C.F.R. §4.159(e). 2. Schedule the Veteran for an examination to determine the nature and etiology of the Veteran's claimed esophageal disability. The examiner must be provided with the Veteran's complete updated claims file, including this remand, the prior Board decisions, and CAVC remand. The examiner must review the expanded record including all relevant service treatment records and address the following: 3. Is it at least as likely as not (at least a 50 percent possibility) that the Veteran's esophageal disability had its onset during or is otherwise etiologically related to the Veteran's active service, to include the Veteran's motorcycle accident? The examiner must note, and address the Veteran's lay testimony including, but not limited to: (a.) The Veteran testified that he was involved in a motorcycle accident in service where he injured his cheekbone, back, and his skin was "jarred loose...up under [his] chin. (b.) He further testified that after the accident he had problems swallowing, and that he has experienced these problems since service. (c.) He explained that although he experienced these symptoms during service, at the time, he "was young and didn't pay attention to" them. He testified that his symptoms "got worse as [he] got older [such] that [food] started coming back up." 4. A complete rationale must be provided for any opinion or conclusion expressed. The clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). If the examiner is unable to provide any requested opinion, he or she must provide a thorough explanation. 5. The AOJ must review this opinion to ensure it is adequate and complies with the Board's specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). 6. After completing the above, and conducting any further development deemed necessary, readjudicate the claims. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist Associate 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.