Citation Nr: 1752080 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 12-02 542A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active service from May 1980 to August 1980. These matters are before the Board of Veterans' Appeals (Board) on appeal of a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2015, the Veteran provided testimony at a video hearing. A transcript of the hearing is of record. In December 2015, the Board remanded the claim for further development. In October 2017, the Veteran submitted additional evidence with a waiver of initial RO consideration of the evidence. FINDING OF FACT The Veteran's GERD is manifested by symptoms of pain, and vomiting, without demonstration of material weight loss and hematemesis or melena with moderate anemia or other symptom combination productive of severe impairment of health. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for GERD have not been met. 38 U.S.C. § 5107 (West 2012); 38 C.F.R. § 4.114, Diagnostic Code 7346 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board finds that there has been substantial compliance with its December 2015 remand directives. See D'Aries v. Peake, 22 Vet.App. 97, 105 (2008); see also Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West,11 Vet.App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) Analysis 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 separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part IV (2016). 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 reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran's GERD is rated under 38 C.F.R. § 4.114, Diagnostic Codes 7399-7346. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. GERD is not specifically listed in the Rating Schedule, and the this hyphenated diagnostic code indicates that the most analogous diagnostic code for the Veteran's GERD is Diagnostic Code 7346, which applies to hiatal hernia. 38 C.F.R. § 4.20 (providing for rating by analogy). 38 C.F.R. § 4.114 provides that ratings under Diagnostic Codes 7301 through 7329, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. Rather, a single rating will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevation. The evidence discussed below reflects that Diagnostic Code 7346 reflects the dominant disability picture. Under Diagnostic Code 7346, a 30 percent rating is warranted where there is persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain productive of considerable impairment of health. A maximum 60 percent rating is warranted where there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptoms combinations productive of severe impairment of health. The criteria under Diagnostic Code 7346 are conjunctive, not disjunctive; thus all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). 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. For purposes of evaluating conditions in 38 C.F.R. § 4.114, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. 38 C.F.R. § 4.112 (2017). "Baseline weight" means the average weight for the two-year-period preceding onset of the disease. On VA examination in January 2011, the Veteran reported that he was presently on Nexium with improvement of his symptoms. He had a history of esophageal disease with daily nausea. There was no vomiting or dysphagia. He did have a history of daily esophageal distress accompanied by severe substernal pain. There was a history of daily heartburn. There was a history of daily regurgitation of undigested food. There were no signs of significant weight loss or malnutrition. An August 2011 private endoscopy report revealed that the Veteran had non-bleeding ulcer and gastric mucosal abnormality characterized by erythema. In June 2013 independent report completed by a VA compensation and pension examiner, it was reported that the Veteran not only had GERD but diagnostic testing in August 2011 also showed the presence of an esophageal ulcer and gastric mucosal abnormality characterized by erythema. The examiner felt that the combination of the esophageal ulcer, gastric mucosal abnormality and GERD warranted a higher disability evaluation. On VA examination in February 2017 for esophageal conditions, the Veteran reported that his symptoms relating to his GERD consisted of abdominal pain, vomiting and bloating. He also reported that he had the following symptoms: persistently recurrent epigastric distress, reflux, regurgitation, substernal shoulder pain, sleep disturbance caused by esophageal reflux, nausea and vomiting. He indicated that he had to use frequent sick days at work due to his symptoms. On VA examination in February 2017 for stomach and duodenal conditions, the Veteran reported that he continued to have peptic ulcers and that he took medication for treatment of the ulcers. He indicated that he experienced four or more symptom recurrence every year that lasted 1 to 9 days. He also indicated that he had recurring episodes of severe symptoms four or more times a year. He had abdominal pain at least monthly that was only partially relieved by standard ulcer therapy. He had periodic nausea and vomiting. He had incapacitating episodes 4 or more times a year. He indicated that he had to use frequent sick days at work due to his symptoms. In a February 2017 VA medical opinion, the VA examiner noted that the Veteran's service treatment records clearly document peptic ulcer disease by upper GI series in 1980. The examiner stated that the Veteran's symptoms have persisted since leaving the service and is documented by an upper GI series conducted by the conducted in 2011. After careful review of the evidence, the Board finds the Veteran's GERD and peptic ulcer symptoms do not more closely approximate the criteria for a 60 percent rating under Diagnostic Code 7346. In making this determination, the Board notes that while the Veteran has been shown to complain of vomiting, abdominal pain, and periodic nausea, there is no evidence of material weight loss and hematemesis or melena with moderate anemia or other symptom combinations productive of severe impairment of health which is warranted for a 60 percent rating. Even acknowledging combined symptoms from both GERD and peptic ulcer disease, the evidence shows both disorders are managed by various medications and they have not been shown to be the type, frequency, or severity to more nearly approximate the level of disability contemplated by the 60 percent rating. As such, the Board finds that the criteria for an initial rating in excess of 30 percent for GERD are not met. The Board has considered whether the Veteran is entitled to a separate or higher rating under other potentially applicable diagnostic codes; however, 38 C.F.R. § 4.113 provides 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 38 C.F.R. § 4.14. The Board finds that Diagnostic Code 7346 best reflects the Veteran's symptomatology and provides the highest initial rating based on the applicable criteria. 38 C.F.R. § 4.20 specifies, when rating disorders by analogy, that not only the functions affected but also the anatomical location and symptomatology must be closely analogous. As such, Diagnostic Codes 7200 through 7306 are not as fitting as Diagnostic Code 7346 based on symptomatology. Similarly, the Board finds that Diagnostic Codes under 38 C.F.R. § 4.114 governing disorders of the intestines, liver, pancreas, and gall bladder are inappropriate Diagnostic Codes with which to evaluate the Veteran's GERD under the provisions of 38 C.F.R. § 4.20. The Board notes that certain Diagnostic Codes under 38 C.F.R. § 4.114 address the gastric and esophageal systems, making them at least potentially applicable under 38 C.F.R. § 4.20. However, the Veteran has at no time displayed or claimed to experience stricture or spasm of the esophagus, rendering ratings under Diagnostic Codes 7203 and 7204 inappropriate. Similarly, no peritoneal adhesions have been shown, and the Veteran has not displayed any obstruction or other symptoms such as delayed motility of barium meal and pulling pain in the peritoneal region; thus, rating under Diagnostic Code 7301 is not appropriate when evaluating the Veteran's GERD. In addition, the Board finds that Diagnostic Code 7307, evaluating gastritis, is not fitting for evaluating the Veteran's GERD, as he has not displayed eroded or ulcerated areas or hemorrhages of the stomach to warrant a disability rating under that Diagnostic Code. He has not undergone a gastrectomy, rendering Diagnostic Code 7308, concerning postgastrectomy syndrome, inapplicable. The identified Diagnostic Codes simply do not provide as close a similarity to the anatomical location, symptomatology, and affected functions as does Diagnostic Code 7346 governing hiatal hernia. Thus, the Board finds that Diagnostic Code 7346 provides the most fitting criteria under which to evaluate the Veteran's GERD. Therefore, the Veteran is not entitled to a higher or separate rating under any other potentially applicable diagnostic code. Given the foregoing, the Board finds the preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 30 percent for service-connected GERD. As such, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER An initial rating in excess of 30 percent for GERD is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs