Citation Nr: 1009540 Decision Date: 03/15/10 Archive Date: 03/24/10 DOCKET NO. 05-28 417 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUE Entitlement to a rating in excess of 10 percent for a hiatal hernia with gastroesophageal reflux disease (GERD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Matthew W. Blackwelder, Associate Counsel INTRODUCTION The Veteran had active military service from February 1983 to May 2004. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2004 rating decision. FINDING OF FACT The objective medical evidence does not show that the Veteran's gastroesophageal reflux disease is productive of considerable impairment of health. CONCLUSION OF LAW Criteria for a rating in excess of 10 percent for gastroesophageal reflux disease have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.114, Diagnostic Code (DC) 7346 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court noted a distinction between an appeal involving the Veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson, 12 Vet. App. at 126. The Veteran's hiatal hernia with GERD is currently rated at 10 percent under 38 C.F.R. § 4.114, DC 7346. Under this rating criteria, a 10 percent rating is assigned when two or more of the symptoms required for a 30 percent evaluation are present, but are of less severity. A 30 percent rating is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating is assigned 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. The terms "severe impairment of health" and "considerable impairment of health" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It is noted that there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title "Diseases of the Digestive System," do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14. See 38 C.F.R. § 4.113. In this case, the Veteran asserts that his GERD is more severe than it is currently related. In support of his claim, the Veteran has submitted numerous VA treatment records from throughout the course of his appeal showing symptoms of GERD, and he has undergone two VA examinations to evaluate his GERD. However, as will be discussed below, the evidence simply does not show that the criteria for a rating in excess of 10 percent for GERD have been met. Specifically, the evidence fails to show that the Veteran's GERD is productive of considerable impairment of health. The Veteran's treatment records show a number of GERD symptoms. In September 2004, it was noted that the Veteran had nausea and regurgitation, but he was negative for anemia. In September 2005, the Veteran reported being in constant discomfort due to his acid reflux, indicating that he threw up every night, and would wake up with regurgitation periodically throughout the night. The nurse indicated that the Veteran reported severe reflux with dry heaves in the middle of the night off and on for two years. However, she found the Veteran to be in no acute distress. Reglan was added to his medications. In May 2006, the Veteran underwent a general medical VA examination where he reported weight loss, but did not quantify it. He also reported that he continued to have problems keeping his food down. The examiner diagnosed the Veteran with a hiatal hernia with reflux that had a partial response to medication. There was no indication that the Veteran's GERD caused considerable impairment of his health. In October 2007, the Veteran underwent a VA esophageal examination. The Veteran reported a long history of gastroesophageal reflux disease, indicating that his symptoms had worsened since an upper GI in 2006. He reported vomiting three times per week. He denied any dysphagia, but complained about daily pyrosis. However, there was no radiation of the pain to his jaw or arm. The Veteran denied any nausea. The Veteran indicated that he would have some daytime fatigue if he was up vomiting at night, but other than that, the Veteran was able to accomplish his activities of daily living. The examiner found no evidence of anemia. The Veteran had an upper GI, which showed the Veteran's esophagus to have a normal caliber and contour; and no hiatal hernia or mass lesion was noted. There was a gastroesophageal reflux, but the examiner stated that the upper GI was otherwise normal. In June 2007, the Veteran denied any nausea or vomiting; but did complain about weight loss, indicating that he lost 10 pounds due to gastric problems. However, the medical professional indicated that the Veteran weighed 206 pounds with his usual weight being approximately 210 pounds and his ideal weight being 172 pounds. The medical professional indicated that the Veteran was in his usual weight range. As such, the Veteran's complaints of weight loss do not appear to represent material weight loss as anticipated by the rating schedule. In August 2008, the Veteran complained that his C-PAP mask was at times getting acid reflux in it. The Veteran underwent a VA esophageal examination in August 2009 where he denied having any impediment to his activities of daily living. The examiner observed that the Veteran had a long history of GERD, and the Veteran reported that he continued to have pyrosis approximately 3 times per week, which he described as occurring in the epigastric and substernal area. However, the examiner commented that there was no significant radiation of pain to the Veteran's arm or jaw. The Veteran also complained of reflux every other day, stating that he would reflux into his C-PAP mask, if he ate in the evening. The Veteran denied any vomiting, nausea, hematemesis or melena; and he denied any history of dysphagia. The examiner indicated that the Veteran was 194 pounds and his general state of health was well without evidence of anemia (per a CBC in February 2009) or malnutrition. The examiner diagnosed the Veteran with a small sliding hiatal hernia with gastroesophageal reflux disease. The Veteran has also voiced a number of GERD-related complaints during the course of his appeal. For example, in a December 2004 statement, he reported throwing up on several occasions; in his substantive appeal the Veteran indicated that he had burning sensations and regurgitation at night; in March 2006, the Veteran complained about having a burning pain in his stomach after eating, stating that he often regurgitates; and, in August 2007, the Veteran indicated that his appetite was not good, that he threw up nightly; and that he had pain/burning in his esophagus or lungs at night. A lay person is competent to report observable symptomatology of an injury or illness. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). As such, Veteran is considered competent for report symptoms such as regurgitation and vomiting. However, it is noted that competency must be distinguished from credibility; and in this case, the evidence of record tends to undermine the Veteran's credibility. While the Veteran commendably appears to have gained control over his drug and alcohol addictions, the fact remains that he was addicted to crack cocaine during much of his appeal, to the point that a doctor recommended he be found incompetent to receive VA benefits. Specifically, in March 2008, a VA doctor diagnosed the Veteran with cocaine dependence, alcohol dependence, PTSD and depressive disorder; and stated that the Veteran had repeatedly demonstrated that he was not capable of handling his money, as he repeatedly used his funds to support his substance abuse. Substance addiction alone may not impugn a person's credibility. However, the Veteran has also demonstrated a pattern of misrepresenting his symptoms on several occasions in an effort to create a more severe medical picture. For example, in a March 2008 treatment record, it was noted that the Veteran had feigned illness at a VA examination in October 2007; and, in November 2008, it was thought that the Veteran was faking his symptoms of suicidal ideations in order to gain hospital admission. While the Veteran was eventually found to be competent to receive benefit payments by a VA examiner at an August 2009 psychiatric examination, who noted that the Veteran had been sober since November 2008 and had passed drug screens in February and June 2009, the fact remains that for much of his appeal, the Veteran was under the powerful influence of addiction and was found to be misrepresenting his symptoms. As such, the Veteran's statements are not taken as credible evidence that his GERD is more severe than it is currently rated. This determination is ultimately inconsequential, as even when he was relating symptoms, the Veteran's statements did not show that his GERD was productive of considerable impairment of health. The evidence does show that the Veteran's GERD is symptomatic as the Veteran has reflux with regurgitation. As such, it was appropriately found that a 10 percent rating was warranted. However, at VA examinations in October 2007 and August 2009, there was no objective medical evidence that the Veteran's reflux caused pain that radiated into his sternum, arm or shoulder. Additionally, while the examiner in October 2007 did not specifically comment on how the Veteran's GERD impacted his overall health, the examiner did note that despite the symptoms of GERD, the Veteran was able to accomplish his activities of daily living. In August 2009, the examiner also did not find that the Veteran's GERD caused considerable impairment of health, stating that the Veteran's general state of health was well without evidence of anemia or malnutrition. Furthermore, treatment records from throughout the course of the Veteran's appeal have noted that the Veteran's GERD is at least partially controlled by medication, and the Veteran indicated at the August 2009 examination that he got reflux at night if he ate meals too late, thereby suggesting that he has some control over his GERD. It is not disputed that the Veteran's GERD is symptomatic. However, it is not credibly shown that the Veteran's GERD causes radiating pain, or that it is productive of considerable impairment of health. As such, the criteria for a rating in excess of 10 percent for GERD have not been met, and the Veteran's claim is denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Here, however, the Veteran's claim was for service connection, which was granted. He then appealed the downstream issue of the rating that had been assigned. Under these circumstances, since the original claim was granted, there are no further notice requirements under the aforementioned law. With respect to the duty to assist, the relevant VA treatment records have been obtained, as have Social Security Administration (SSA) records. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file). Additionally, the Veteran was scheduled to testify a hearing before the Board, but he withdrew his hearing request. Accordingly, there is no prejudice to the Veteran in adjudicating this appeal. ORDER A rating in excess of 10 percent for GERD is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs