Citation Nr: 1750436	
Decision Date: 11/07/17    Archive Date: 11/17/17

DOCKET NO.  12-23 589	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD).


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Z. Sahraie, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Navy from July 2005 to April 2006.  

The matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.  The claim was subsequently transferred to the Montgomery, Alabama RO.

This appeal was processed using the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS).  Accordingly, any future consideration of this case should take into consideration the existence of these records.


FINDING OF FACT

Throughout the current appeal period, the Veteran's GERD has been manifested by recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.


CONCLUSION OF LAW

The criteria for an evaluation of 30 percent for GERD are satisfied.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.114, Diagnostic Code (DC) 7346 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to notify and assist

In a claim for an increased rating, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vasquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  VA has sent the Veteran letters throughout the appeal process which set out the type of evidence needed to substantiate the claim.  There has been no allegation of notice error in this case.

The Board has also satisfied its duty to assist.  38 U.S.C.A. § 5103A; 38 C.F.R. 3.159.  VA has obtained all identified and available treatment records for the Veteran.  In addition, the Veteran underwent a VA examination in May 2016.  The Board finds the examination adequate, because it included a review of the medical file, an interview of the Veteran, and examination findings supported by rationale.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his appeal.  The Veteran has not identified any outstanding evidence that needs to be obtained.  

Entitlement to a rating in excess of 10 percent for GERD

Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

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 (1991).  Separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be staged.   Fenderson v. West, 12 Vet. App. 119, 126 (1999); Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  In the instant case, the record does not reflect a significant material change in the disability level; hence, a uniform rating is warranted.  Where there is a question as to which of the 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.

The Veteran's GERD is rated under Diagnostic Code 7346 for hiatal hernia.  The disability is currently rated as 10 percent disabling for the entirety of the appeal period.  A 30 percent rating requires a showing of persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, causing considerable impairment of health.  A 60 percent rating requires a showing of symptoms including 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. § 4.114, DC 7346.

In reviewing the relevant evidence of record, the Board finds that entitlement to an increased evaluation of 30 percent is warranted, based on the Veteran's consistent symptomatology including dysphagia, pyrosis, and regurgitation, with substernal and arm pain, productive of considerable impairment of health.  The Veteran's GERD predates her service, the record showing she began experiencing symptoms during her teenage years, with exacerbation in service.  

Symptoms have continued into the current appeal period; May 2010 private treatment records reflect ongoing complaints of GERD symptoms, including substernal pain and burning.  Treatment notes from this period characterize the Veteran's symptoms as "fairly severe and of long term duration."  

A VA examiner with whom the Veteran met in August 2010 noted symptoms including pain, daily heartburn and daily regurgitation.  The Veteran was taking prescribed Aciphex on a daily basis which did help to manage her symptoms, but these symptoms were nonetheless causing increased absenteeism at work.   

The Veteran was afforded another VA examination in June 2016 to evaluate the nature and severity of her symptoms.  That examiner found the Veteran beset by symptoms including frequent nausea, vomiting, and sleep disturbance, as well as ongoing substernal pain, despite continuous treatment with medication.

The above-described evidence most closely approximates the disability picture represented by a 30 percent rating, which requires a showing of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, causing considerable impairment of health.  The Veteran has had these symptoms on an ongoing basis during the current appeal period; her weight has also fluctuated and, given her difficulty sleeping due to GERD-related symptoms, the Veteran's symptomatology is, in the aggregate, plainly causing considerable impairment of her health.  

However, as the record does not reflect sustained material weight loss, nor hematemesis, melena, or anemia, the criteria for a 60 percent rating are not shown.  Further, while the Veteran's symptoms are significant, they do not appear to be productive of the severe impairment of health contemplated in the 60 percent rating criteria.  There is no indication of frequent emergency room visits for gastric distress.  The Veteran has not argued that she is unable to work due to symptoms or that she has suffered protracted debilitating episodes.  

Accordingly, the Board assigns a 30 percent rating, but no higher, for the Veteran's GERD.  38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 4.3 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to an evaluation of 30 percent for GERD is granted.






____________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs