Citation Nr: 21068344 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 14-37 161 DATE: November 10, 2021 ORDER Entitlement to service connection for gastroesophageal reflux disease (GERD) secondary to service-connected diabetes mellitus (diabetes) is granted. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted. REMANDED Entitlement to special monthly compensation (SMC) based on housebound status is remanded. Entitlement to SMC based on aid and attendance is remanded. FINDINGS OF FACT 1. The Veteran's GERD has been aggravated beyond its natural progression by his service-connected diabetes. 2. The Veteran has been precluded from securing and following a substantially gainful occupation due to his mild atheromatous changes of the bilateral lower extremities, bilateral shoulder sternum costochondritis, and glaucoma. CONCLUSIONS OF LAW 1. The criteria for service connection for GERD as secondary to diabetes are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1966 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) from a March 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In a May 2018 decision, the Board denied, in relevant part, entitlement to service connection for GERD and to a TDIU. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In February 2019, the Court issued a Joint Motion for Partial Remand (JMPR) remanding the issues of entitlement to service connection for GERD and to a TDIU to the Board. In June 2019, the Board remanded entitlement to service connection for GERD and to a TDIU for further development in compliance with the JMPR instructions. The case then returned to the Board and in July 2020, the Board denied entitlement to service connection for GERD and to a TDIU. The Veteran appealed that decision to the Court. In an April 2021 Order, the Court granted a Joint Motion for Remand (JMR) submitted by the Veteran and the Secretary of VA (Parties), vacating the July 2020 Board denial, and remanding the matter to the Board for compliance with the JMR instructions. The Parties agreed that remand was warranted because the Board erred by failing "to provide an adequate statement of reasons or bases." JMR at 1. Specifically, the Parties agreed that "the Board did not properly address the adequacy of the January 2020 VA examination." Id. In this regard, the Parties agreed that the June 2019 Board remand instructions contained an erroneous definition of "aggravation" for purposes of secondary service connection. Id. at 1- 2. Following the June 2019 Board remand, an examiner provided a negative medical opinion addressing secondary service connection for GERD and the Board relied on this opinion to deny service connection for GERD in July 2020. See January 2020 C&P medical opinion. The Parties agreed that it was unclear to what extent the examiner's medical opinion was influenced by the erroneous definition contained in the June 2019 Board remand. Id. at 2. The Parties agreed that remand was "warranted for the Board to address the adequacy of the January 2020 medical opinion in light of the instructions provided to the examiner, and to determine whether any further development is warranted in this regard." Id. The Parties additionally agreed that the issue of entitlement to a TDIU was inextricably intertwined with service connection for GERD. Id. Accordingly, remand was also warranted for entitlement to a TDIU. Id. 1. Entitlement to service connection for GERD secondary to service-connected diabetes is granted. The Veteran asserts that his GERD is secondary to his service-connected diabetes. See September 2021 Third-Party Correspondence. The Board notes that the issue of entitlement to service connection for GERD on a direct basis has been deemed abandoned by the Court in the February 2019 JMPR and by the Board in its July 2020 decision. See July 2020 Board decision at 2; JMPR at 1; see also Bowers v. Shinseki, 26 Vet. App. 201, 210 n.12 (2013) (recognizing an appellant's right to expressly abandon parts of his or her appeal). Thus, the Board will only address the theory of secondary service connection. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. Secondary service connection is warranted for a disability that is proximately due to or has been aggravated by a service-connected disability. 38 C.F.R. § 3.310. The Veteran is currently in receipt of service connection for type II diabetes mellitus. Thus, the issue becomes whether the claimed disability of GERD is proximately due to or has been aggravated by his diabetes. The record contains two VA negative medical opinions addressing secondary service connection for GERD and a September 2021 private medical opinion providing a positive opinion concerning aggravation. In the February 2019 JMPR, the January 2013 negative medical opinion was found inadequate. That leaves the January 2020 C&P medical opinion. The Court's April 2021 JMR instructed the Board to determine the adequacy of the January 2020 medical opinion in light of the erroneous definition of "aggravation" contained in the instructions given to the examiner. It remains unclear to what extent the erroneous definition influenced the January 2020 examiner's opinion. The Board, however, finds the January 2020 medical opinion to be supported by an inadequate rationale regardless of the JMR's instruction to consider the effect of the erroneous definition. In this regard, the January 2020 medical opinion begins by stating, "This examiner concurs with the previous examiner[']s medical opinion." As noted earlier, the previous opinion with which the examiner concurred has already been ruled inadequate by the Court for its failure to discuss aggravation. See February 2019 JMPR at 2. The January 2020 opinion provides nothing of substance in addition to what was already said in the previous opinion. The January 2020 opinion provides a generaland speculativefavorable prognosis applicable in most cases of GERD; possible complications of GERD; and a statement that the Veteran has not exhibited GERD complications or exhibited signs of worsening of his condition. This statement, however, is inaccurate as the September 2021 private medical opinion highlights evidence of worsening GERD symptoms. The Board finds the January 2020 medical opinion regarding aggravation to be inadequate because contrary to the examiner's assertion, the record does contain evidence of worsening symptoms, as observed by the September 2021 private examiner. In this regard, the private examiner noted that after developing diabetes, the Veteran's GERD "became more severe as symptoms have been persistent and refractory to treatment; thus, this cannot be deemed as a mild or moderate case." Specifically, the Veteran was hospitalized for one week for acute gastritis in June and July 2019, a sign that the Veteran's GERD had worsened according to the private examiner. The July 2019 VA discharge summary indicates GERD/distal esophagal thickening, another sign of worsening symptoms according to the private examiner. Regarding proximate causation, the January 2020 C&P examiner provided a negative opinion, stating that the Veteran's GERD symptoms manifested 18-years prior to his diagnosis of diabetes; therefore, diabetes could not have caused GERD since diabetes occurred after the onset of GERD. The Board finds this rationale to be based on sound logic and, therefore, adequate. In contrast to the January 2020 C&P opinion, the September 2021 private medical opinion opined that it is at least as likely as not that the Veteran's GERD had been worsened by his service-connected diabetes. The Board finds this favorable medical opinion to be supported by an adequate rationale and to be probative. In this regard, the private examiner conducted a thorough review of the Veteran's relevant medical files and detailed her findings. The examiner then provided a detailed discussion of the mechanics of GERD and how it can be affected by diabetes. The examiner cited and discussed the findings of several medical articles and research studies demonstrating a link between diabetes and worsening GERD symptoms. The examiner also responded to claims made by the January 2013 and January 2020 C&P examiners and explained why she disagreed. As already noted, the private examiner highlighted objective evidence of worsening GERD symptoms, namely distal esophagal thickening. Based on its detailed review of the medical evidence of record, well-supported rationale, and reliance on published research studies and articles, the September 2021 private medical opinion is probative and weighs in favor of granting the claim for secondary service connection based on aggravation. Secondary service connection based on proximate causation is not supported by the record. In this regard, the January 2013 and January 2020 C&P examiners observed that GERD symptoms occurred decades before the development of diabetes. Furthermore, the September 2021 private medical examiner limited her opinion to aggravation and did not address proximate causation. In addition, the Court's April 2021 JMR indicated that the Parties agreed remand was warranted to address only the aggravation portion of the January 2020 opinion. See JMR at 1-2; Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (explaining the "Court will [not] review BVA decisions in a piecemeal fashion"); see also Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992) ("Advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court."). For these reasons, the Board finds that service connection for GERD secondary to diabetes based on proximate causation is not warranted. However, the record supports granting service connection for GERD based on aggravation by service-connected diabetes. Accordingly, the benefit sought on appeal is granted. 2. Entitlement to a TDIU is granted. The Veteran asserts that his service-connected disabilities preclude him from securing and following a substantially gainful occupation. See May 2012 VA Form 21-8940; August 2005 and October 2000 VA Forms 21-527. The Board agrees. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the Veteran is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran's standalone TDIU claim was filed on May 29, 2012. See May 2012 VA Form 21-8940. As of that date, the Veteran is in receipt of a 40 percent rating for mild atheromatous changes of the right lower extremity; a 40 percent rating for mild atheromatous changes of the left lower extremity; a 20 percent rating for right shoulder sternum costochondritis; a 20 percent rating for left shoulder sternum costochondritis; a 20 percent rating for diabetes; and a 10 percent rating for glaucoma. The Veteran's combined rating has been 90 percent since October 2011. See August 2018 Codesheet. Thus, the Veteran meets the schedular criteria for a TDIU from the date of the claim, May 29, 2012. See 38 U.S.C. § 4.16(a). The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran's ability to secure or follow substantially gainful employment, including factors such as the veteran's history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran last worked full-time in 1995. See May 2010 VA Form 21-8940; November 2000 SSA Disability Determination Questionnaire; October 2000 VA Form 21-527. The Veteran indicated that he worked for two months from June to July 2005. See August 2005 VA Form 21-527. The Board, however, considers this employment in 2005 to be marginal as it lasted only 2 months and involved "odd jobs," meaning it likely was not full-time. On his May 2012 VA Form 21-8940, the Veteran indicated that he had not earned any income from employment in the past 12 months. Accordingly, as the Veteran has not worked full-time, non-marginal employment since 1995 and has not earned income from full-time, non-marginal employment since 1995, the economic component of entitlement to a TDIU is met throughout the appeal period. See Ray, 31 Vet. App. at 73. Turning to the noneconomic component, the Veteran holds a bachelor's degree in science completed in 1982; training as an industrial hygienist completed in 1990; and work history as a housing assistant manager, federal housing assistant, public housing technician, social services technician, and dental laboratory assistant. See September 2020 private vocational assessment; May 2012 VA Form 21-8940; November 2000 SSA Disability Determination Questionnaire; October 2000 VA Form 21-527. The Veteran's work history involved using machines, tools, and equipment; using technical knowledge; writing reports; carrying objects from 10 to 100 pounds; and other manual labor tasks. The September 2021 private vocational expert classified the Veteran's occupational history as clerk, considered semi-skilled work, and at the light exertional level. The Board will focus on how his service-connected disabilities affect his ability to perform these types of tasks. The September 2021 private vocational assessment describes the following symptoms and functional impairment caused by the Veteran's mild atheromatous changes of the bilateral lower extremity; bilateral shoulder sternum costochondritis; and glaucoma. The Veteran reported constant pain in his shoulders every day since October 2011. The Veteran endorsed numbness and stiffness in his bilateral upper extremities, which affects his ability to reach, handle, grasp, and manipulate. The Veteran reported that repetitive activity makes his symptoms worse. On bad days he cannot lift anything or even hold a coffee cup. The Veteran reported constant weakness, swelling, pain, and numbness in his lateral lower extremities due to service-connected bilateral mild atheromatous changes since October 2011. The pain felt in his lower extremities compromises his ability to stand and walk safely. The Veteran stated that when he walks, he needs to hold onto the wall and use a cane. He can walk a maximum of 10 minutes with a cane and then he needs to rest. He can sit for 20 minutes before needing to adjust his position to alleviate the pain in his lower extremities. He walks slowly and carefully to avoid falling. The Veteran reported the pain gets worse the longer he is on his feet. The Veteran reported that due to his service-connected bilateral shoulder and bilateral lower extremity disabilities, he has had trouble in reaching, lifting/carrying, handling and grip strength, sitting, standing/walking, climbing, and bending/kneeling/stooping/squatting since October 2011. The Veteran reported getting only 4-5 hours of sleep per night due to pain caused by his shoulders and lower extremities, and this results in daytime fatigue and impaired concentration. Regarding his service-connected glaucoma, the Veteran reported his eyes are burning, watery, and cloudy all the time since October 2011. He stated that he needs his wife to read his prescription bottles for him because he cannot read them due to a visual deficit caused by his glaucoma. He endorsed difficulty sustaining visual focus for extended periods, difficulty watching television, and the inability to read mail or small print. Since October 2011, the Veteran has limited the amount of time he drives; he requires the use of a chair in the bathtub and shower; he cannot put on a t-shirt without pain; and "his wife and daughter perform all of the household tasks including cooking, cleaning, laundry and grocery shopping." The vocational expert specified that the Veteran's bilateral shoulder and lower extremity disabilities are productive of "pain, impaired sensation, and weakness of the upper and lower extremities exacerbated by prolonged activity to include repetitive upper extremity movements and extended periods of sitting, standing, and walking." Continuing, the expert described how the Veteran's "limitations in his ability to repetitively utilize his bilateral upper extremities, as well as the inability to consistently sit, stand, and walk for prolonged periods due to his service-connected conditions and associated pain, numbness, and instability, more likely than not prevent him from consistently and reliably meeting the basic physical requirements of work at the sedentary exertional level." The expert additionally stressed that the Veteran's "inability to maintain concentration, focus, and pace as a result of distracting pain, the need to alter position or recline, and fatigue from nightly sleep impairment preclude the [V]eteran from gainful employment." The expert highlighted that even sedentary work requires "functional use of both upper extremities for repetitive tasks involving gross and fine manual dexterity," which the Veteran could not perform due to his bilateral shoulder disability. The expert also discussed how the Veteran's service-connected glaucoma causes limited "ability to maintain attention to visual detail, limited visual acuity, and limitations with maintaining adequate concentration, focus, and pace." Due to his glaucoma, the Veteran would be off-task for a greater period of time than accepted by industry standards and would be prone to errors and injury. Based on the above limitations, the September 2021 private vocational expert opined that it is more likely than not that the Veteran has been unable to secure and follow a substantially gainful occupation in sedentary skilled or unskilled work since October 2011 to the present due to functional impairment caused by service-connected mild atheromatous changes of the bilateral lower extremities; bilateral shoulder sternum costochondritis; and glaucoma. The expert stated that due to functional limitations caused by the service-connected disabilities described above, "it is more likely than not that [the Veteran] has been unable to meet the physical requirements of even the sedentary exertional level on a consistent and reliable basis since at least October 2011." The expert's opinion included the collective impact of his service-connected disabilities as well as each disability's impact individually. The vocational expert did not include service-connected diabetes in the assessment. The Board finds the September 2021 private vocational assessment to be probative in light of its detailed discussion, well-supported rationale, and thorough review of the records. Furthermore, the Board finds that its probative value outweighs the value of other evidence of record. In this regard, the vocational expert explained with well-reasoned and well-supported responses why she disagreed with the findings of previous C&P examiners. Furthermore, the vocational expert considered the collective impact of the Veteran's multiple service-connected disabilities whereas prior examiners only addressed the disabilities individually. In sum, the probative evidence of record demonstrates that the Veteran's service-connected mild atheromatous changes of the bilateral lower extremities; bilateral shoulder sternum costochondritis; and glaucoma preclude him from securing and following a substantially gainful occupation consistent with his work history. Even though the Veteran has some work experience that is readily applicable to a sedentary occupation based on the ordinary meaning of the term, which the Board broadly defines as white-collar office-type work, see Withers v. Wilkie, 30 Vet. App. 139, 148 (2018), the September 2021 private vocational expert provided a well-reasoned and well-supported rationale for why the Veteran's service-connected disabilities preclude sedentary employment. The evidence shows that while no single disability precludes the Veteran from maintaining or following substantially gainful employment, the collective impact of his service-connected disabilities does. Accordingly, entitlement to a TDIU is warranted. REASONS FOR REMAND 3. Entitlement to SMC based on housebound status is remanded. 4. Entitlement to SMC based on aid and attendance is remanded. The Board finds that statements made by the September 2021 private vocational expert about the Veteran being unable to leave his home and needing regular care from his wife and daughter reasonably raise the issues of entitlement to SMC based on housebound status and aid and attendance. Specifically, the expert stated that the Veteran's "wife and daughter perform all of the household tasks including cooking, cleaning, laundry and grocery shopping," and indicated that the Veteran limited the amount that he left home due to pain and impaired vision. Thus, these issues are raised by the record and require further development on remand. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). 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 pertinent private treatment records. 3. Develop the issue of entitlement to SMC based on housebound status. Request that the Veteran complete and return a VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, and take appropriate action. 4. Develop the issue of entitlement to SMC based on aid and attendance. Request that the Veteran complete and return a VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, and take appropriate action. Please provide a robust rationale for all opinions. If unable to opine without resorting to speculation, the examiner must provide a basis for reaching this conclusion. Marissa Caylor Acting 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.