Citation Nr: 0022246	
Decision Date: 08/23/00    Archive Date: 08/25/00

DOCKET NO.  99-07 383	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, 
Missouri


THE ISSUES

1.  Entitlement to assignment of a compensable disability 
evaluation for service-connected gastroesophageal reflux 
disease (GERD).

2.  Entitlement to assignment of a compensable disability 
evaluation for service-connected obstructive sleep apnea.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Edward Walls, Associate Counsel



INTRODUCTION

The veteran served on active duty from July 1973 to October 
1997.  His appeal comes before the Board of Veterans' Appeals 
(Board) from a June 1998 rating decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in St. Louis, 
Missouri.  The veteran submitted a notice of disagreement in 
August 1998, the RO issued a statement of the case in 
February 1999, and it received a substantive appeal in 
February 1999.

In a November 1999 informal hearing presentation, the 
veteran's representative included contentions pertinent to a 
higher rating for service-connected psychiatric disability 
and asked that the communication be accepted as a notice of 
disagreement.  By statute, a notice of disagreement must be 
filed with the agency of original jurisdiction.  38 U.S.C.A. 
§ 7105(b)(1) (West 1991).  This matter is hereby referred to 
the RO for appropriate action when the claims file is 
received at the RO. 


FINDINGS OF FACT

1.  The veteran's service-connected is manifested by 
epigastric distress and dysphagia.

2.  The veteran's service-connected obstructive sleep apnea 
requires the use of a continuous airway pressure (CPAP) 
machine, but is not productive of chronic respiratory failure 
or cor pulmonale and has not required a tracheostomy.



CONCLUSIONS OF LAW

1.  The criteria for entitlement to assignment of 10 percent 
evaluation for service-connected GERD have been met.  
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, 
including § 4.114, Diagnostic Codes 7203, 7346 (1999).

2.  The criteria for entitlement to assignment of a 50 
percent evaluation, and no more, for service-connected 
obstructive sleep apnea have been met.  38 U.S.C.A. §§ 1155, 
5107 (West 1991); 38 C.F.R. Part 4, including § 4.97, 
Diagnostic Code 6847 (1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The veteran is appealing the original assignment of 
disability evaluations following an award of service 
connection, and, as such, the claims for compensable 
evaluations are well grounded.  38 U.S.C.A. § 5107(a); 
Shipwash v. Brown, 8 Vet. App. 218, 224 (1995).  Moreover, in 
such cases the severity of the disabilities at issue are to 
be considered during the entire period from the initial 
assignment of disability ratings to the present time.  See 
Fenderson v. West, 12 Vet.App. 119 (1999).  

With a well-grounded claim arises a statutory duty to assist 
the veteran with the development of evidence in connection 
with his claim.  38 U.S.C.A. § 5107(a).  After reviewing the 
evidence which includes several VA examination reports and 
records from private sources and the Social Security 
Administration, the Board finds that the record as it stands 
is adequate to allow for equitable review of the veteran's 
increased rating claims and that no further action is 
necessary to meet the duty to assist the veteran.

Disability evaluations are determined by the application of 
the Schedule For Rating Disabilities, which assigns ratings 
based on the average impairment of earning capacity resulting 
from a service-connected disability.  38 U.S.C.A. § 1155; 38 
C.F.R. Part 4.  In order to evaluate the level of disability 
and any changes in condition, it is necessary to consider the 
complete medical history of the veteran's condition.  
Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where 
there is a question as to which of two evaluations shall be 
applied, the higher evaluation will be assigned if the 
disability picture more nearly approximates the criteria 
required for that rating.  Otherwise, the lower rating will 
be assigned.  38 C.F.R. § 4.7.

GERD

Service connection was established for GERD in June 1998 
under Diagnostic Code (DC) 7299-7203, and the RO assigned a 
noncompensable evaluation, currently in effect.  The 
veteran's GERD is rated as analogous to stricture of the 
esophagus because his main symptom has been described by 
medical professionals as a feeling of food being "stuck" in 
his throat.  Code 7203 provides a 30 percent evaluation for 
moderate stricture of the esophagus.  A 50 percent evaluation 
is warranted for severe stricture of the esophagus, 
permitting liquids only.  An 80 percent evaluation is 
warranted for stricture of the esophagus permitting passage 
of liquids only, with marked impairment of general health.  
38 C.F.R. § 4.114, DC 7203.  In every instance where the 
schedule does not provide a zero percent evaluation for a 
diagnostic code, a zero percent evaluation shall be assigned 
when the requirements for a compensable evaluation are not 
met.  38 C.F.R. § 4.31.

The Board will also consider the provisions of DC 7346, which 
provides a 10 percent evaluation with two or more of the 
symptoms for the 30 percent evaluation (epigastric distress, 
dysphagia, pyrosis, regurgitation, or substernal or arm or 
shoulder pain) of less severity.  A 30 percent evaluation is 
warranted for persistently recurrent epigastric distress with 
dysphagia, pyrosis and regurgitation, accompanied by 
substernal or arm or shoulder pain which is productive of 
considerable impairment of health.  A 60 percent evaluation 
is warranted for symptoms of pain, vomiting, material weight 
loss and hematemesis or melena with moderate anemia; or other 
symptom combinations productive of severe impairment of 
health.  38 C.F.R. § 4.115, DC 7346.

At a VA examination in December 1997, the veteran said that 
his stomach was "fine" as long as he "just watch[ed] it."  
The examiner also characterized the veteran's stomach as 
"fine" if cold foods or spicy foods were avoided, and the 
examiner diagnosed GERD, "asymptomatic at present with diet 
control."

A VA examination report of March 1999 shows that the veteran 
was taking Prilosec, which was controlling his GERD symptoms.  
The examiner stated that the veteran had undergone a 
laparoscopic Nissin fundoplication in 1996, and the "the 
only things that bother[ed] him [were] cold foods and spicy 
foods."  The examiner diagnosed GERD, status post 
laparoscopic fundoplication, controlled with Prilosec but 
still symptomatic in regards to the sensation of food getting 
stuck.

The evidence of record shows that the veteran's GERD is 
controlled by Prilosec.  Although he underwent a procedure 
for his GERD, he does not experience any symptoms when he 
avoids certain types of foods, other than a feeling of food 
"sticking" in his throat.  Code 7203 does not contemplate 
this symptom as being productive of moderate stricture in the 
esophagus.  The Board is cognizant that the veteran must 
follow a specific diet because of a heart condition, and he 
has said that he cannot always avoid certain foods, but the 
VA examiners have indicated that medication is controlling 
his symptoms.  In fact, none of the available medical 
evidence shows that the veteran's GERD has been characterized 
as "moderate."  Instead, his GERD was characterized both by 
himself and by the examiner as "fine" in December 1997 when 
he avoids cold or spicy foods.  In light of these 
considerations, a compensable evaluation is not warranted by 
the veteran's service-connected GERD under Code 7203.

However, under Code 7346, the Board believes that a 10 
percent rating can be justified on the basis that he has 
reported epigastric distress with certain foods and a 
sticking sensation which the Board believes is representative 
of dysphagia.  As it appears that he is experiencing a 
minimum of two of the listed symptoms, a 10 percent 
evaluation under Code 7346 is warranted.  However, a higher 
rating is not appropriate since there is no evidence of 
pyrosis and regurgitation, accompanied by substernal or arm 
or shoulder pain which is productive of considerable 
impairment of health.

Obstructive sleep apnea

Service connection was established for the veteran's 
obstructive sleep apnea in June 1998, and the RO assigned a 
noncompensable evaluation under DC 6847.  That Code provides 
a zero percent evaluation for asymptomatic sleep apnea but 
with documented sleep disorder breathing.  A 30 percent 
evaluation is warranted for persistent day-time 
hypersomnolence.  A 50 percent evaluation is warranted for 
requires use of breathing assistance device such as 
continuous airway pressure (CPAP) machine.  A 100 percent 
evaluation is warranted for chronic respiratory failure with 
carbon dioxide retention or cor pulmonale, or; requires 
tracheostomy.  38 C.F.R. § 4.97, DC 6847.

The December 1997 examination report does not reflect any 
clinical findings concerning obstructive sleep apnea in the 
body of the report.  An addendum, however, shows that he 
denied any problems with sleep apnea at that time.  (Private 
medical records and Social Security Administration records do 
not contain any findings relevant to the veteran's service-
connected obstructive sleep apnea.)

A VA examination report of March 1999 shows that the veteran 
used a CPAP both during the day and night.  The examiner 
indicated that the veteran had daytime somnolence, and he 
diagnosed sleep apnea, controlled with CPAP.

The two examination reports are somewhat conflicting.  On one 
hand, the December 1997 examination report shows that the 
veteran denied any problems with sleep apnea.  On the other 
hand, the March 1999 report shows that the veteran uses a 
CPAP.  Code 6847 provides a 50 percent evaluation for 
requires use of breathing assistance device such as 
continuous airway pressure (CPAP) machine.  As such, the 
Board concludes that a 50 percent evaluation is warranted for 
the veteran's sleep apnea.  The Board is basing this decision 
on the March 1999 examination report which shows the veteran 
uses a CPAP in the day and night.  The examiner in March 1999 
also stated that there was daytime somnolence, although he 
did not characterize it as persistent.  In any event, the use 
of the CPAP reflects that a 50 percent evaluation is 
warranted for the veteran's service-connected obstructive 
sleep apnea.

The clinical record, however, does not warrant a higher 
evaluation.  None of the evidence shows that the veteran has 
chronic respiratory failure with carbon dioxide retention or 
cor pulmonale.  Likewise, the evidence does not show that the 
veteran requires a tracheostomy.  In fact, the addendum to 
the December 1997 report shows that the veteran denied any 
problems with sleep apnea at that time.  Although the record 
reflects that there was a worsening of his condition 
subsequent to that examination, this language is not 
probative of an evaluation in excess of 50 percent for 
service-connected obstructive sleep apnea.  Considering the 
lack of evidence conforming to the criteria of a 100 percent 
rating, the preponderance of the evidence is against the 
application of a 100 percent assignment for his obstructive 
sleep apnea.

Conclusion

In reaching the above determinations, the Board has 
considered the evidence in view of the reasonable doubt 
provisions of 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  
However, there is not such a state of equipoise of the 
positive evidence with the negative evidence to warrant more 
favorable determinations than those discussed above. 



ORDER

Entitlement to assignment of a 10 percent disability 
evaluation for service-connected GERD is warranted.  
Entitlement to assignment of a 50 percent evaluation, and no 
more, for service-connected obstructive sleep apnea is 
warranted.  The appeal is granted to this extent. 



		
	ALAN S. PEEVY
	Member, Board of Veterans' Appeals


 
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