Citation Nr: 1751492 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 13-05 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for service-connected gastroesophageal reflux disease (GERD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. O'Donnell, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from January 1966 to May 1969. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, in which the RO granted service connection for GERD, and assigned a 30 percent evaluation, effective August 12, 2003, which was the date of receipt of the Veteran's original claim for entitlement to service connection. This claim was remanded for further development by the Board in April 2015. That development has been completed and the case has since been returned to the Board for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. FINDINGS OF FACT For the entire period on appeal, the Veteran's GERD was not manifested by pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 30 percent for GERD have not been met for any time period on appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.1, 4.3, 4.7, 4.114, Diagnostic Code, 7346 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has considered the Veteran's claim and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. When, as here, the Veteran is requesting a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). For the entire increased rating period, a 30 percent disability rating was assigned for the Veteran's service-connected GERD under 38 C.F.R. § 4.114, Diagnostic Code 7399-7319. To that end, GERD is not among the listed conditions in the Rating Schedule. When an unlisted condition is encountered, it is permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2014). As an evaluation of 30 percent is the highest available evaluation under Diagnostic Code 7319, the Board has considered whether an increased evaluation would be warranted under other relevant diagnostic codes. To that end, the Board finds that the Veteran's service-connected GERD is most closely analogous to a hiatal hernia (Diagnostic Code 7346) in terms of symptomatology and resulting disability picture. Under Diagnostic Code 7346, a 30 percent rating requires persistently recurrent epigastric distress with dysphagia, pyrosis, dysphonia, and regurgitation accompanied by substernal, arm, or shoulder pain, which is productive of considerable impairment of health. A 60 percent rating requires 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. § 4.114. Notably, the Board also considered a rating under Diagnostic Code 7328 for resection of the small intestine, for which a 40 percent rating is assigned when there is definite interference with absorption and nutrition, manifested by impairment of health objectively supported by examination findings including definite weight loss. A 60 percent rating is assigned when there is marked interference with absorption and nutrition, manifested by severe impairment of health objectively supported by examination findings including material weight loss. However, in this case, as shown below, the medical evidence of record does not show either weight loss or nutrition issues. As such, a rating under this Diagnostic Code is not warranted. Disability ratings assigned under Diagnostic Codes 7301 to 7329 (inclusive), 7331, 7342, and 7345 to 7348 (inclusive) will not be combined with each other. Instead, a single disability rating will be assigned under the diagnostic code which reflects the veteran's predominant disability picture with elevation to the next higher rating where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. Throughout the course of this appeal, the Veteran has contended that the service-connected GERD has been manifested by more severe symptoms than that contemplated by the 30 disability rating assigned. To this end, the Board notes that the period on appeal extends back to August 12, 2003, as that was the date of receipt of the Veteran's original claim for service connection. In December 2003, the Veteran was afforded a VA gastrointestinal examination. The Veteran reported that he experienced stomach aches and acidic tastes in his mouth. He indicated that he was taking medication to mitigate his symptoms. The Veteran denied experiencing epigastric burning, nausea and vomiting, as well as hematemesis, and melena. He stated that he did not have problems with eating, stating that he was able to eat anything. To that end, he reported that he consumed approximately three cups of coffee per day, as well as approximately twelve beers per week without issue. The Veteran also reported did not experience circulatory disturbances following meals but reported that he experienced bloating. He stated that he had an episode of hematochezia within the past year, which he addressed with his primary care physician. He reported that he occasionally experienced diarrhea, particularly related to stress, and indicated that he did not experience constipation. Further, he reported that he intentionally lost approximately 30 pounds, as he went on the Atkins diet several months prior to the examination. A January 2004 Gastroenterology note indicated that the Veteran had one episode of hematochezia in the prior year. However, the Veteran was negative for anemia and his abdomen was reported as normal and there was no reported weight loss. In April 2008, the Veteran was afforded a VA examination to determine the severity of his GERD. The Veteran reported that he experienced heartburn, belching, stomach pain, indigestion, and occasion nausea. The Veteran reported that he skipped meals approximately five times per week and that he occasionally had difficulty swallowing. He reported that he did not experience vomiting, or pain while swallowing. His kidneys, spleen, adrenals, gallbladder and pancreas were all normal. The Veteran had normal bowel sounds and no hepatomegaly. However, the examiner noted that the Veteran had significant acid reflux. In August 2008, the Veteran reported that he felt slightly nauseated. See August 2008 VA Gastroenterology Consultation Note. However, the Veteran denied experiencing vomiting, regurgitation, dysuria, hematuria, incontinence, and abdominal pain. See id. In May 2009, the Veteran was treated for sharp abdominal pain, and he reported that he vomited. See May 2009 VA Treatment Records. The Veteran denied experiencing melena, diarrhea, constipation, dysuria, and hematuria. See id. In December 2013, the Veteran indicated that symptoms of his GERD were controlled with his current medication. The Veteran also denied experiencing weight loss, nausea, vomiting, diarrhea, constipation, hematochezia, and melena. See December 2013 VA Primary Care Note. In April 2014, the Veteran reported that he did not experience unintentional weight loss, abdominal pain, diarrhea, constipation, nausea, or vomiting. See April 2014 VA Gastroenterology Consultation Note. In a July 2014 VA primary care note, when asked about pain, the Veteran indicated that pain due to his GERD was controlled with use of his current medication. See July 2014 VA Primary Care Note. In July 2015, the Veteran reported that he experienced constipation but indicated that he did not experience nausea, vomiting, diarrhea, melena, or hematochezia. See July 2015 VA Primary Care Note. In January 2016, the Veteran reported that he experienced constipation but indicated that he did not experience nausea, vomiting, diarrhea, melena, or hematochezia. See January 2016 VA Primary Care Note. In July 2016, the Veteran reported that he experienced constipation but indicated that he did not experience nausea, vomiting, diarrhea, melena, or hematochezia. See July 2016 VA Primary Care Note. In June 2017, the Veteran was afforded a VA examination to assess the severity of his service-connected GERD. The Veteran reported that he experienced explosive bowel movements, followed by 3 to 4 days of constipation. He reported that he took Prilosec, which caused his reflux to be "pretty much controlled," and stated that his major problems were associated with his stomach. To that end, the Veteran reported constipation, bowel rumbling, and explosive diarrhea. Although the Veteran reported that he had no interest in eating, as a result of his symptoms, he reported that he had not lost weight. The examiner opined that the many of the Veteran's reported symptoms, including constipation and explosive bowel movements, were less likely due to GERD and more likely related to comorbid conditions associated with his lower gastrointestinal system. The Veteran reported that medication had helped control his symptoms associated with his upper gastrointestinal system. In terms of symptoms associated with the Veteran's GERD, the examiner reported that the Veteran experienced persistent recurrent epigastric distress, dysphagia, reflux, and nausea, with more than four instances of nausea per year. The examiner indicated that the Veteran did not have an esophageal stricture, spasm or esophagus, or an acquired diverticulum of the esophagus. The Examiner reported that the Veteran had no scars associated with GERD, and no other pertinent physical findings in relation to GERD were found. The examiner noted that a sub-cm sessile inflammatory polyp was found in the Veteran's stomach, but that the Veteran's stomach was otherwise normal. Moreover, the Veteran's duodenum, and esophagus were normal, and tests showed that the Veteran did not have anemia. Also, the examiner noted that the Veteran did not have a hernia or esophagitis. Further, the examiner opined that the Veteran's symptoms combined to produce less impairment to health. Based on the evidence of record, lay and medical, the Board finds that the Veteran's overall disability picture does not warrant an evaluation in excess of 30 percent under the applicable Rating Schedule. To that end, the aforementioned evidence does not show that during the period on appeal the Veteran had vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. As shown above, medical records have consistently shown that the Veteran denied experiencing vomiting, weight loss and hematemesis, melena with moderate anemia. Moreover, the evidence reflects that at no point during the pendency of the appeal were the Veteran's combined symptoms productive or severe impairment. Rather, the June 2017 VA examiner opined that the Veteran's combined symptoms were productive of less impairment to health. Additionally, the Board notes the various lay statements of record, including the statements from the Veteran and from G.I., however, the Board assigns significant probative weight to the medical evidence of record, as the Veteran has consistently identified his symptoms to VA examiners and treating physicians. Symptoms of which the Board finds most closely approximate those contemplated by his current 30 percent evaluation, and do not warrant an increase under any alternative diagnostic code. The Board is grateful for the Veteran's service. However, the Board concludes that the preponderance of the evidence is against a finding that an evaluation in excess of 30 percent is appropriate for any period on appeal, and the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. ORDER Entitlement to an initial evaluation in excess of 30 percent for service-connected GERD is denied. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs