Citation Nr: A25035313 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 241009-482507 DATE: April 16, 2025 REMANDED Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is remanded. Entitlement to an initial rating in excess of 30 percent for insomnia is remanded. REASONS FOR REMAND The Veteran had active service in the United States Marine Corps from September 1996 to September 2000. This appeal comes to the Board of Veterans' Appeals (the Board) following two rating decisions. In October 2023, the Agency of Original Jurisdiction (AOJ) granted service connection for GERD and assigned an initial 10 percent rating from April 18, 2023. In November 2023, the AOJ reestablished service connection for insomnia, which had previously been severed effective January 18, 2023 in a September 2023 rating decision. A 30 percent rating was therefore assigned for insomnia from January 18, 2023. The Veteran appeal the October and November 2023 decision by filing a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) in October 2024. He elected the Direct Review docket. Therefore, with respect to the claim for an initial rating in excess of 10 percent for GERD, consideration may only be given to the evidence of record at the time of the October 2023 AOJ decision on appeal. Regarding the claim for a rating in excess of 30 percent for insomnia, consideration may only be given to the evidence of record at the time of the November 2023 rating decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the relevant AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claims for increased ratings for GERD and insomnia, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii). Department of Veterans' Affairs (VA) regulations require that the Board contact an appellant and request clarification if the Board cannot identify which review option an appellant intends to select. See 38 C.F.R. § 20.202(f). Furthermore, a Notice of Disagreement (NOD) may be unclear if an appellant attaches evidence to a NOD indicating that the appellant is seeking Direct Review, as evidence submitted along with a NOD may not be considered by the Board under that review option. See Edwards v. McDonough, 36 Vet. App. 56 (2023). In the instant appeal, the Veteran's attorney submitted argument along with the VA Form 10182, to include argument that there were errors in the processing of his claims. These contentions are posited as errors in the application of the law and are properly before the Board, as they are not new evidence. The present appeal is therefore factually distinguishable from Edwards, and the Board can proceed with a decision without clarifying the Veteran's intent pursuant to 38 C.F.R. § 20.202(f). 1. Entitlement to an Initial Rating in Excess of 10 Percent for GERD The Veteran has been in receipt of an initial 10 percent rating for GERD from April 18, 2023. He contends that his symptoms warrant a higher rating. One of the effects of the Appeals Modernization Act (AMA) is to narrow the set of circumstances in which the Board must remand appeals to the AOJ for further development instead of immediately deciding them directly. However, the Board has the duty to remand issues when necessary to correct a pre-decisional duty to assist error where the issues cannot be granted in full. 38 U.S.C. § 5103A(f); 38 C.F.R. § 20.802(a). In an April 2023 statement, the Veteran stated that he takes numerous over-the-counter medications, including TUMS, Rolaids, and Pepto-Bismol, daily for the control of his GERD symptoms. He further indicated that he has been prescribed Nexium, which he takes as needed. This statement is supported by the May 2023 VA examination, during which the Veteran again reported that he takes Pepto-Bismol and TUMS for control of his GERD symptoms. He also stated that he must bring these medications to work with him daily and that he must take them as needed throughout the workday. In Jones v. Shinseki, 26 Vet. App. 56 (2012), the United States Court of Appeals for Veterans Claims (the Court) held that VA has a duty to consider the ameliorative effects of medications when raised by the record and not explicitly contemplated by the rating schedule. In other words, "when relevant criteria do not explicitly contemplate a veteran using medication to allay symptoms of a service-connected disability, the Board, in assessing the severity of that disability for rating purposes, must discount the beneficial effects of medication used." Ingram v. Collins, No. 23-1798, 2025 U.S. App. Vet. Claims LEXIS 327, *10 (Mar. 12, 2025) (emphasis in original). Based on the foregoing, the Board concludes that the May 2023 VA examination is inadequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran repeatedly indicated that he takes multiple medications daily for the control of his GERD symptoms. He also emphasized that he must bring these medications to work with him and must take them during the workday. Despite this, the May 2023 VA examiner did not address the ameliorative effects of these medications on the severity of the Veteran's service-connected GERD. See Jones, 26 Vet. App. at 63. Thus, the Board finds that the AOJ committed a pre-decisional duty to assist error in failing to obtain a medical opinion addressing how medications may affect the severity of the Veteran's GERD symptoms (and thereby impact his eligibility for a higher rating under 38 C.F.R. § 4.114, Diagnostic Code 7399-7346). Remand is therefore necessary to obtain a clarifying VA medical opinion to correct this error. 2. Entitlement to an Initial Rating in Excess of 30 Percent for Insomnia The Veteran has been in receipt of a 30 percent rating for insomnia from January 18, 2023. VA has the duty to assist claimants in obtaining evidence necessary to substantiate a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A. Pursuant to this duty to assist, VA must obtain records that have a reasonable possibility of being related to the claim for benefits. See 38 U.S.C. § 5103A; see also 38 C.F.R. § 3.156(c); Golz v. Shinseki, 590 F.3d 1317, 1320 (Fed. Cir. 2010). The record indicates that there may be outstanding treatment records pertaining to the Veteran's service-connected insomnia. During the January 2023 VA examination, the Veteran stated that he attends marital and individual therapy through a private provider. In an April 2023 statement, the Veteran indicated that he was prescribed Trazodone for his insomnia and that he attends therapy sessions 24 times per year. Similarly, in a May 2023 VA examination pertaining to his mental health disorder, he reported that he attends individual therapy sessions every two weeks. The duty to assist requires VA to make reasonable efforts to obtain relevant private treatment records adequately identified by the claimant. 38 U.S.C. § 5103A(b)(1). The record does not indicate that VA has attempted to obtain these potentially relevant records, nor has VA attempted to elicit additional information about his private mental health provider. The AOJ's failure to attempt to obtain the Veteran's private mental health treatment records is a pre-decisional duty to assist error. Upon remand, VA should request authorization to obtain these records, as they are potentially relevant to his increased rating claim. See 38 U.S.C. § 5103A. This matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected GERD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner is also asked to review the claims file and opine on the following: Provide a retrospective estimate of the nature and severity of the Veteran's GERD symptoms without considering the ameliorative effects of medication (TUMS, Rolaids, Pepto-Bismol, and Nexium) during the period on appeal. In other words, the clinician should describe the nature and severity of the Veteran's GERD symptoms if medications were not used. 2. Ask the Veteran to complete a VA Form 21-4142 for any private medical provider or facility where he has received treatment for his insomnia, to include the dates of any such treatment. Make two requests for the authorized records from any identified providers or facilities, unless it is clear after the first request that a second request would be futile. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, 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.