Citation Nr: 1634673 Decision Date: 09/02/16 Archive Date: 09/09/16 DOCKET NO. 12-16 066 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa THE ISSUE Entitlement to a rating in excess of 10 percent for gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1977 to July 1981, from March 1983 to May 1987, and from June 1991 to September 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Des Moines, Iowa RO which, in pertinent part, continued a 10 percent rating for GERD. In November 2014, a videoconference hearing was held before the undersigned; a transcript of the hearing is in the record. In January 2015, the matter was remanded for additional development. FINDING OF FACT At no time under consideration is the Veteran's GERD shown to have been manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, or to have been productive of considerable impairment of health. CONCLUSION OF LAW A rating in excess of 10 percent for GERD is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.20, 4.21, 4.114, Diagnostic Code (Code) 7346 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA's duty to notify was satisfied by letters in January 2008 and September 2008. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). At the November 2014 videoconference hearing, the undersigned advised the Veteran of what is still needed to substantiate the claim on appeal (evidence of increased severity of his GERD); his testimony reflects that he is aware of what is needed to substantiate the claim. The Veteran's pertinent treatment records are associated with his claims file. The AOJ arranged for VA examinations in August 2008, January 2014, and (pursuant to the Board's remand) March 2015. The Board finds the examinations are adequate for rating purposes as the reports reflect the providers' familiarity with the Veteran's medical history and note his complaints, and note all physical findings necessary for proper consideration of this matter. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any relevant evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned specific diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. The rating schedule does not provide a specific code for GERD; the rating assigned is by analogy to the criteria for rating hiatal hernia. 38 C.F.R. § 4.20. On review of those criteria, the Board finds the analogy appropriate, as the symptoms of GERD most approximately resemble the symptoms and impairment in the criteria for rating hiatal hernia (under Code 7346). Under Code 7346, a 30 percent rating is warranted when there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. With two or more of the symptoms for the 30 percent evaluation of lesser severity, a 10 percent rating is warranted. 38 C.F.R. § 4.114. The Veteran's increased rating claim was received in December 2007; therefore, the relevant period begins in December 2006. The medical evidence is silent regarding GERD from December 2006 to August 2008. On August 2008 VA examination, the Veteran reported reflux with regular use of prescription medicines, with good results and infrequent symptoms. He took one tablet of ranitidine twice a day as needed. He reported daily nausea associated with esophageal disease but denied any history of vomiting or dysphagia. He reported esophageal distress less than weekly and accompanied by pain. He reported daily heartburn or pyrosis. He reported regurgitation of clear fluid less than weekly. He reported mild hematemesis or melena. There was no history of esophageal dilation. On physical examination, there were no signs of anemia, significant weight loss, or malnutrition; the abdomen was nontender. Overall health was good. The diagnosis was hiatal hernia with gastric reflux with no significant effects on the Veteran's usual occupation and no effects on usual daily activities. On January 2009 VA treatment, the Veteran reported no dyspepsia, heartburn, difficulty swallowing, gas, bloating, belching, abdominal pain, constipation, diarrhea, vomiting, jaundice, hematemesis, melena, acolic stools, rectal pain, or BRBPR. An endoscopy revealed 2 fundic polyps, which appeared identical. In his December 2009 notice of disagreement, the Veteran reported that he had gastric distress and regurgitation, and had to have his teeth capped due to stomach acid eating away at the tooth enamel. In his June 2012 substantive appeal, the Veteran stated that he daily experienced acid in his throat and mouth, had acid reflux every morning upon waking, and had acid reflux basically all of the time. On January 2014 VA examination, the Veteran reported that he had been taking one tablet of omeprazole daily for the last 10 years. A 2009 endoscopy and biopsy revealed no Barrett's esophagitis. He reported that the omeprazole continued to treat his reflux symptoms although he could not eat spicy foods and avoided eating late at night for fear of reflux. He took Tums for relief of heartburn three to four times per month. He denied daily dyspepsia or heartburn, difficulty swallowing, gas, bloating, belching, abdominal pain, constipation, diarrhea, or vomiting. He reported symptoms including infrequent episodes of epigastric distress, reflux, and sleep disturbance caused by esophageal reflux; his symptoms recurred three times per year and lasted less than one day in average duration. On February 2014 VA treatment, the Veteran reported that his GERD symptoms had been mostly controlled by omeprazole taken once daily. He reported occasional breakthrough symptoms of upset stomach but denied any dysphagia or cough. On physical examination, he denied anorexia, nausea, vomiting, change in bowel habits, abdominal pain, constipation, diarrhea, melena, or hematochezia. The assessment was that it would be okay to increase his omeprazole to twice daily as needed. In a February 2014 statement, the Veteran stated that his GERD medication had been increased to help control his acid reflux. He reported having heartburn and pain from GERD and waking at night due to GERD symptoms. He reported having acid reflux during the day and taking supplemental medication three to four times per week. In a March 2014 VA disability benefits questionnaire, it was noted that the Veteran's GERD was diagnosed in 2008, when omeprazole (20 milligrams, daily) was prescribed. He reported taking 20 milligrams of omeprazole daily since then, and sometimes took the medication twice daily for breakthrough symptoms. He reported infrequent episodes of epigastric distress, occurring four or more times per year. January 2009 upper endoscopy and biopsy showed two fundic polyps and one tongue of mucosa at the gastroesophageal junction; biopsy of the junction was normal. Biopsy of the fundic polyp showed a fundic gland polyp. At the November 2014 videoconference Board hearing, the Veteran testified that he previously took prescribed medication for GERD once daily, but the dosage was recently increased/doubled, and he now took the medication twice daily. He testified that he avoids spicy foods and gets chest pain every once in a while. He testified that he holds his breath when he feels the chest pain and it goes away; with medications, this occurred anywhere from three times per week to every few months. On February 2015 VA treatment, the Veteran reported that his symptoms were better controlled with twice daily omeprazole. He reported occasional breakthrough symptoms of upset stomach with spicy foods. He reported no dysphagia, cough, anorexia, nausea, vomiting, change in bowel habits, abdominal pain, constipation, diarrhea, melena, or hematochezia. On March 2015 VA examination (pursuant to the Board's January 2015 remand), the Veteran reported that he was taking omeprazole twice daily; three to four times per week, he needed to take Tums or an extra omeprazole due to reflux symptoms which were usually substernal chest pain or burning/acid taste in the back of the throat. He did not need to seek immediate care for the substernal pains, which improve with deep breathing and extra medication; he did not miss work due to pain. He reported that his sleep was interrupted most nights. His symptoms included infrequent episodes of epigastric distress, pyrosis, reflux, regurgitation, substernal pain, sleep disturbance caused by esophageal reflux occurring 4 or more times per year, and nausea occurring 4 or more times per year and lasting for less than 1 day. There was no esophageal stricture, spasm of the esophagus (cardiospasm or achalasia), or acquired diverticulum of the esophagus. The examiner opined that the GERD diagnosis describes the Veteran's condition better than a hiatal hernia (diagnosis), and that GERD does not impact on the Veteran's ability to work. Additional VA and private treatment records through 2015 show symptoms that are largely similar to those reflected on the VA examinations described above. The Board finds that at no time during the evaluation period is the Veteran's GERD shown to have been manifested by symptoms meeting the above-listed criteria for a 30 percent rating. Notably, the criteria for a 30 percent rating in Code 7346 are stated in the conjunctive and must all be met to warrant such rating. At no time during the appeal period is it shown that he had persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, or to have been productive of considerable impairment of health. While he has reported occasional chest pain (that goes away if he holds his breath) symptoms reflecting considerable impairment of health are not shown at any time; and it has consistently been found that the GERD does not impact on employment. The symptoms reported/found, and the medication required to control them, are contemplated by the 10 percent rating assigned. The criteria for a 30 percent rating are not met. Furthermore, the Board finds that the evidentiary record presents no reason to refer the case to the Compensation and Pension Service for consideration of an extra-schedular evaluation under 38 C.F.R. § 3.321(b). There is no evidence or allegation of symptoms or impairment not encompassed by the schedular criteria, so as to render those criteria inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). The matter of entitlement to a total disability rating based on individual unemployability due to service-connected disability is not raised by the record in the context of the instant claim. There is nothing in the record to suggest (nor does he allege) that GERD renders the Veteran incapable of working. ORDER A rating in excess of 10 percent for GERD is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs