Citation Nr: 22018239 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 16-55 796 DATE: March 28, 2022 ORDER Entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.30 (paragraph 30 benefits) for a surgery conducted in 1995 or 1996 is dismissed. REMANDED Entitlement to a rating in excess of 10 percent for service-connected gastropathy and gastroesophageal reflux disease (GERD) with ulcerative esophagitis is remanded. Entitlement to compensation for diabetes mellitus secondary to service-connected gastropathy and GERD with ulcerative esophagitis is remanded. Entitlement to compensation for tardive dyskinesia secondary to service-connected gastropathy and GERD with ulcerative esophagitis is remanded. FINDING OF FACT The Agency of Original Jurisdiction (AOJ) has not issued a rating decision addressing entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.30 (paragraph 30 benefits) for a surgery conducted in 1995 or 1996. CONCLUSION OF LAW Entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.30 (paragraph 30 benefits) for a surgery conducted in 1995 or 1996 is dismissed. 38 U.S.C. §§ 7104, 7105 ; 38 C.F.R. § 20.104(c). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1972 to April 1984. This matter comes before the Board of Veterans' Appeals (Board) from a May 2015 rating decision by a Department of Veterans Affairs (VA) AOJ. In June 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a virtual Board hearing. 1. Entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.30 (paragraph 30 benefits) for a surgery conducted in 1995 or 1996 is dismissed. At the Board hearing, the undersigned VLJ erroneously indicated that the issues on appeal included entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.30 (paragraph 30 benefits) for a surgery conducted in 1995 or 1996. See June 2021 Board hearing transcript (Tr.) at 2. In November 2021, the Board sent the Veteran a letter explaining its error in indicating that paragraph 30 benefits were on appeal and that it lacked jurisdiction to decide this issue. The letter explained that the Board lacked jurisdiction over entitlement to paragraph 30 benefits because the issue had not been adjudicated in the rating decision on appeal and a Notice of Disagreement (NOD) had not been submitted for this issue. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.20, 20.104(c). The letter provided the Veteran 60-days "to submit argument as to why the Board should not dismiss the issue of paragraph 30 benefits for lack of jurisdiction." (emphasis in original). The letter also explained the Veteran's right to request a hearing on the issue. The letter further explained that if the Board does "not hear from [the Veteran] by the end of the 60-day period, we will assume that you do not have anything to submit and that you do not want a hearing, and will proceed to address the jurisdictional question," to include the possibility of dismissal of the issue. At the time of issuing this decision, approximately 5 months have passed since dispatching the letter explaining the jurisdictional problem and allowing the Veteran time to respond. The Board has not received a response from the Veteran. Accordingly, for reasons explained above and in the letter, the Board finds that it lacks jurisdiction over the issue of entitlement to paragraph 30 benefits. The primary reason for the lack of jurisdiction is that a properly perfected legacy appeal consists of a timely filed NOD or Substantive Appeal, submitted within one year of notice of a rating decision or Statement of the Case, respectively, and no rating decision has been issued on this matter, and neither a NOD nor a Substantive Appeal had been filed for this issue. Furthermore, paragraph 30 benefits are awarded for a surgery that occurred during the relevant appeal period of an underlying increased rating claim. Here, the surgery for which the Veteran has claimed paragraph 30 benefits occurred in the late 1990s and the current appeal period originates from a November 2014 VA Form 21-526EZ. In other words, the surgery pre-dates the appeal period by approximately 20 years. Rating decisions in October 1998 and July 2000 addressing an increased rating for service-connected GERD have since become final, as NODs were not received within one year of issuance of these decisions. The only way to appeal these decisions with respect to paragraph 30 benefits is by filing a motion for clear and unmistakable error (CUE). The Veteran may work with his representative to file a CUE motion if he wishes to raise the issue of entitlement to paragraph 30 benefits. The Veteran also made assertions at the hearing about his surgery that sounded like he was alleging the surgery was performed incorrectly. Specifically, the Veteran testified that "when they wrapped the fundus of the stomach around the esophagus to stop the reflux, the wrap was so tight that I don't have solid regurgitation or esophageal reflux, but I have liquid reflux and stuff like that. But it also made it where I have delayed gastric emptying, and this delayed gastric emptying has been in my records and everything like that since I think it was two or three years after the surgery, and the doctor said it was from the surgery." Tr. 3; see also Tr. 10. If the Veteran wishes to claim benefits on the basis of negligence, he is encouraged to work with his representative to file a claim under 38 U.S.C. § 1151. REASONS FOR REMAND 2. Entitlement to a rating in excess of 10 percent for service-connected gastropathy and GERD with ulcerative esophagitis is remanded. 3. Entitlement to compensation for diabetes mellitus secondary to service-connected gastropathy and GERD with ulcerative esophagitis is remanded. 4. Entitlement to compensation for tardive dyskinesia secondary to service-connected gastropathy and GERD with ulcerative esophagitis is remanded. The Veteran asserts that his service-connected gastropathy and gastroesophageal reflux disease with ulcerative esophagitis (hereinafter, GERD) warrants a rating in excess of the currently assigned 10 percent. See Tr. 2-18; November 2016 VA Form 9; October 2015 NOD; February 2016, October 2015, and November 2014 VA Forms 21-526EZ. The Veteran also asserts that his service-connected GERD includes delayed gastric emptying (gastroparesis), which he asserts should be rated. Id.; see also Tr. 4-5, 7, 13. Based on discussion at the hearing, it was determined that the Veteran's symptoms may have worsened since his last examination. Tr. 5, 9, 14, 16. Furthermore, the Veteran asserted that his service-connected GERD has caused diabetes mellitus and that a medication he takes for GERD has caused tardive dyskinesia. Tr. 7, 11. VA will adjudicate as part of a claim entitlement to any ancillary benefits that arise as a result of the adjudication decision, including entitlement to any additional benefits for complications of the claimed condition. 38 C.F.R. § 3.155(d)(2); Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021) (holding that VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of an increased rating claim). Significantly, the claimant need not assert entitlement to such ancillary benefits at the time the claim is filed. Id.; see also Grimes v. McDonough, 34 Vet. App. 84 (2021). Accordingly, remand is warranted to schedule the Veteran for an updated VA examination to assess the current severity of his service-connected GERD, to include any associated gastroparesis, and to develop and to determine whether the Veteran's diabetes mellitus and tardive dyskinesia are related to his GERD. Updated VA and private treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then schedule the Veteran for a VA examination, preferably with a physician, to assess the current nature and severity of his service-connected GERD and to assess the etiology of his gastroparesis, diabetes mellitus (DM) and tardive dyskinesia. The entire claims file must be made available to and reviewed by the examiner, to include a copy of the June 2021 Board hearing transcript, which the examiner must review and indicate having done so. All necessary diagnostic tests and studies responsive to the Veteran's symptoms must be carried out. After examining the Veteran, conducting any needed diagnostic testing, and considering his medical history, the examiner should address the following: (a.) Can the Veteran's gastroparesis be considered a complication of his service-connected GERD? Note: A "complication" is a condition that is considered to be so closely related to the disability at issue that it may be considered a part of that service-connected disability. (b.) If the gastroparesis can be considered a complication of his GERD, please describe the nature and severity of any current residuals. (c.) If the gastroparesis cannot be considered a complication of the GERD, please state whether it is at least as likely as not (nearly equal or approximate balance) that the gastroparesis was caused by the Veteran's GERD, to include any medications used to treat the same. Please explain why or why not. (d.) If not caused by the GERD, is it at least as likely as not that the Veteran's gastroparesis was worsened beyond its normal progression by the GERD, to include any medications used to treat the same? Please explain why or why not. (e.) If the examiner finds that the Veteran's gastroparesis was worsened beyond normal progression (aggravated) by the GERD, to include any medications used to treat the same, please describe the degree of aggravation attributable to the GERD. (f.) Can the Veteran's DM be considered a complication of his service-connected GERD, to include gastroparesis if service-connected or a medication (such as metoclopramide) to treat a service-connected condition (hereinafter, service-connected GI disabilities or medications)? Note: A "complication" is a condition that is considered to be so closely related to the disability at issue that it may be considered a part of that service-connected disability. (g.) If the DM can be considered a complication of his service-connected GI disabilities or medications used to treat the same, please describe the nature and severity of any current residuals. (h.) If the DM cannot be considered a complication of the service-connected GI disabilities or medications used to treat the same, please state whether it is at least as likely as not (nearly equal or approximate balance) that the DM was caused by the Veteran's service-connected GI disabilities or medications used to treat the same. Please explain why or why not. (i.) If not caused by the service-connected GI disabilities or medications, is it at least as likely as not that the Veteran's DM was worsened beyond its normal progression by the service-connected GI disabilities or medications used to treat the same? Please explain why or why not. (j.) If the examiner finds that the Veteran's DM was worsened beyond normal progression (aggravated) by the service-connected GI disabilities medications used to treat the same, please describe the degree of aggravation attributable to the service-connected GI disabilities or medications used to treat the same. (k.) Can the Veteran's reported tardive dyskinesia be considered a complication of his service-connected GERD, to include gastroparesis if service-connected or a medication (such as metoclopramide) to treat a service-connected condition (hereinafter, service-connected GI disabilities or medications)? Note: A "complication" is a condition that is considered to be so closely related to the disability at issue that it may be considered a part of that service-connected disability. (l.) If the tardive dyskinesia can be considered a complication of his service-connected GI disabilities or medications, please describe the nature and severity of any current residuals. (m.) If the tardive dyskinesia cannot be considered a complication of the service-connected GI disabilities or medications, please state whether it is at least as likely as not (nearly equal or approximate balance) that the tardive dyskinesia was caused by the Veteran's service-connected GI disabilities or medications used to treat the same. Please explain why or why not. (n.) If not caused by the service-connected GI disabilities or medications, is it at least as likely as not that the Veteran's tardive dyskinesia was worsened beyond its normal progression by the service-connected GI disabilities or medications used to treat the same? Please explain why or why not. (o.) If the examiner finds that the Veteran's tardive dyskinesia was worsened beyond normal progression (aggravated) by the service-connected GI disabilities or medications used to treat the same, please describe the degree of aggravation attributable to the service-connected GI disabilities or medications used to treat the same. A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 4. Upon readjudication, the AOJ should ensure the Veteran's GERD, and all complications and disabilities caused by GERD, are rated under a diagnostic code (DC) or codes that compensate all his symptoms, even if this requires rating by analogy. The AOJ should specifically consider whether DCs 7301 and 7319 are appropriate. See Tr. 14. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, 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.