Citation Nr: 0111307 Decision Date: 04/18/01 Archive Date: 04/24/01 DOCKET NO. 00-09 371 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to an increased rating for gastroesophageal reflux disease (GERD), with small hiatal hernia, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD K. Ehrman, Counsel INTRODUCTION The veteran had active service from July 1955 to August 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a RO rating decision dated in March 1999, which denied a claim for a compensable rating for service-connected GERD, with small hiatal hernia. A May 2000 rating decision assigned an increased 10 percent rating for this disorder, and the veteran's appeal continued. FINDING OF FACT The service-connected GERD, with small hiatal hernia, is manifested by: a 3 cm. hiatal hernia and epigastric distress, with complaints of daily heartburn, difficulty swallowing (dysphagia), and regurgitation; objective demonstration of mild gastroesophageal reflux on upper gastrointestinal x-ray study, occasional heartburn, difficulty swallowing (dysphagia), and regurgitation after large, or spicy meals, without any medical evidence of anemia, substernal, arm, or shoulder pain, or overall symptoms of considerable impairment of health. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for gastroesophageal reflux disease, with small hiatal hernia, are not met. 38 U.S.C.A. § 1155 (West 1991); Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000); 38 C.F.R. §§ 3.321, 4.7, and 4.114, Diagnostic Code 7346 (2000). REASONS AND BASES FOR FINDING AND CONCLUSION The Board is satisfied that the duty to assist has been adequately discharged by VA with respect to the issue addressed herein. See Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA). The veteran has been provided adequate VA esophagus and hiatal hernia examinations both in February 1999 and May 2000, and his VA treating facility has provided a panoply of treatment records concerning special medical tests and diagnostic procedures regarding the disability at issue. The notice provisions of the VCAA of 2000 have also been met. In the April 1999 statement of the case (SOC) and June 2000 supplemental statement of the case (SSOC) provided to the veteran, he was advised of regulatory provisions permitting increased ratings as to his service-connected GERD, with small hiatal hernia; thus, the evidence necessary to substantiate his claim and assertions on appeal. Pursuant to Diagnostic Code 7346, a 10 percent rating is warranted for hiatal hernia which is manifested by two or more of the symptoms necessary for a 30 percent rating, though of less severity. A 30 percent evaluation requires persistently recurrent epigastric distress with dysphagia (difficult swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. (Emphasis added). For the following reasons and bases, the Board finds that the objective medical evidence shows that the veteran has occasional dysphagia, pyrosis, and regurgitation after large or spicy meals, and that these symptoms are not accompanied by-and do not more closely approximate, substernal, arm, or shoulder pain, productive of considerable impairment of health, as contemplated by the criteria for a 30 percent evaluation under Diagnostic Code 7346. The veteran asserts that he is obliged to avoid spicy foods and he contends that while medications control some of his epigastric symptoms, he still experiences daily dysphagia, regurgitation, and heartburn. In essence, he asserts that his service-connected GERD, with hiatal hernia, is more severely disabling than the current 10 percent evaluation contemplates, and that his disorder more closely approximates symptoms of persistently recurrent epigastric distress. Written argument of the veteran's representative dated in September 2000 avers that the veteran's GERD symptoms are "persistently recurrent," and indicative of "considerable impairment of health" within Diagnostic Code 7346, so as to warrant a 30 percent evaluation. VA treatment records dated from October 1997 to November 1998 show treatment for, and the veteran's own reports of, occasional GERD symptoms, but not of the severity the veteran now claims on appeal. VA endoscopic examination in May 1998 revealed a small hiatal hernia, 3 cm., with no evidence of esophagitis. In June 1998, the veteran's weight was 162 pounds, and his GERD symptoms were noted to be relieved by use of medication. In August 1998, the veteran's weight remained at 162 pounds, with notation that he was clinically "asymptomatic," and that the GERD had "improved" with medications. A computerized tomography (CT) scan and repeat CT scan revealed no evidence of any enlargement of the hiatal hernia, that the pancreas was normal, and that liver and biliary tree were unremarkable as well. In November 1998, the veteran was seen for complaints of "occasional" dysphagia. The examiner noted that the veteran remained "asymptomatic," except for the dysphagia, which occurred only "after large meals." The GERD was found to be "controlled" by medications, and there was no clinical evidence of acute or chronic pancreatitis. The veteran's weight was at 169 pounds at that time. Later in November 1998, the veteran was advised to loose weight and to maintain a weight of 160 pounds. Upper gastrointestinal testing of February 1999 revealed "mild" GERD, and an otherwise normal gastrointestinal series. The veteran was afforded an appropriate VA examination in February 1999, with review of the claims file by the examiner. At that time, he reported that his heartburn was "very rare" on present (new) medications. He indicated that he had GERD symptoms only with particularly spicy foods, including tomato products. His present weight was 182 pounds (at a height of five feet, six inches); he denied any weight gain. Blood testing revealed a while blood count (WBC) of 8.4; hemoglobin of 14.2; hematocrit of 44.1; MCV of 94.7; and, platelets of 181,000. The diagnosis was mild GERD and a 3 cm. hiatal hernia. On VA examination in May 2000, the veteran's claims file was again reviewed by the examiner. The veteran reported having to almost always avoid spicy foods and tomato based foods, and he usually remains on a bland diet. He reported daily difficulty swallowing, heartburn, and reflux, staring 20 to 30 minutes after eating and continuing for 45 minutes to one hour thereafter. In addition to his GERD medication, the veteran admitted to keeping his bed elevated, eating small meals, and siting erect for at least one hour after eating. On physical examination, the veteran's current weight was 177 pounds; he denied any weight gain. No anemia was found; WBC was 8.7; hemoglobin was 14.5; hematocrit was 46.5; and, MCV was 93.4. Upper G-I testing was performed which revealed no abnormalities other than a small hiatal hernia. Prior endoscopy (May 1998) and G-I testing (February 1999) were noted by the examiner to show a hiatal hernia, with recurring gastritis. The diagnosis was small hiatal hearing with GERD symptoms. In considering the veteran's claim for an increased rating for service-connected GERD with small hiatal hernia, the Board concedes that his condition continues to be problematic, and that it is not totally and completely controlled by medication. The veteran is required to take medications for GERD, as well as control his eating habits, avoiding both large and spicy meals. He has been advised to loose weight and maintain a weight of 160, but he has not done so. While he repeatedly denies any weight gain on VA examination, his VA treatment records objectively and clinically demonstrate a weight gain from 162 pounds to 177 or 182 pounds during the appeal period, a fact which is significant only in that a treating physician has noted this to be of import. Additionally, while the veteran reports daily symptoms of dysphagia, heartburn and regurgitation, his VA treatment records objectively and clinically demonstrate symptoms largely controlled by medications, with such symptoms only on large or spicy meals. Substernal, arm or shoulder pain has not been demonstrated. Accordingly, the Board is of the opinion that an increased rating for his service- connected GERD, with small hiatal hernia, is not in order. In reaching such conclusion, the Board is constrained to point out that while the veteran is shown to experience some occasional difficulty in swallowing (dysphagia), heartburn, and regurgitation, his symptomatology does not appear to occasion any appreciable impairment of his overall general state of health, and is clearly not productive of, nor more closely approximating, the requisite considerable impairment of health necessary for a 30 percent rating under Diagnostic Code 7346. With respect to the latter observation, the Board would saliently point out that the veteran is free of anemia, he has experienced no loss of weight within the time period relevant to this aspect of the appeal, and, significantly, VA examiners have repeatedly remarked that his GERD is "asymptomatic," "controlled" by medication, and that his hiatal hernia is not growing and is "small." Given the foregoing observations, the Board concludes that the preponderance of the evidence is against the claim on appeal, as it does not warrant the assignment of an evaluation in excess of 10 percent for service-connected GERD, with small hiatal hernia. In reaching the foregoing determination, the Board has considered the provisions of 38 C.F.R. § 4.10, as pertinent to GERD and hiatal hernia-occasioned impairment in the veteran's ability to function under the ordinary conditions of daily life. In this regard, the Board observes that while the veteran's GERD symptoms apparently continue to be bothersome, he has no appreciable impairment of health, anemia, or weight loss, but, to the contrary, continued to at least maintain an elevated weight in excess of his treating physician's recommended 160 pounds. These and foregoing considerations, in the Board's view, mitigate persuasively against any notion of entitlement to a higher disability rating predicated on the provisions of 38 C.F.R. § 4.10. Finally, the Board has also given consideration to the provisions of 38 C.F.R. § 4.7, which provide that, where there is a question as to which of two evaluations should be assigned, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. However, as indicated above, the record does not show that the actual manifestations of the veteran's service- connected GERD, with small hiatal hernia, more closely approximate those required for a 30 percent rating than they do the disability rating currently assigned. Accordingly, the Board is unable to identify a reasonable basis for a grant of this aspect of the benefit sought on appeal. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10 and Part 4, Diagnostic Code 7346. In addition, the evidence of record does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and thus warrant assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (2000). The veteran is not shown by any objective evidence to have been hospitalized by his GERD, with small hiatal hernia, or that it interferes at all with his employability to a degree greater than that contemplated by the regular schedular standards which, as noted above, contemplate impairment in earning capacity in civil occupations. Therefore, an exceptional or unusual disability picture (i.e., one where the veteran's currently assigned pertinent rating is found to be inadequate) is not presented. See Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); See also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Accordingly, in the absence of such factors, the Board determines that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. ORDER The claim for an increased rating for gastroesophageal reflux disease, with small hiatal hernia, currently evaluated as 10 percent disabling, is denied. BARBARA B. COPELAND Member, Board of Veterans' Appeals