Citation Nr: 1752274	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  13-18 514	)	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:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. Taylor, Associate Counsel

INTRODUCTION

The Veteran served on active duty from August 1994 to July 1997.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. A Notice of Disagreement (NOD) was filed in June 2012. A Statement of the Case (SOC) was issued in May 2013. A substantive appeal (VA Form-9) was filed in June 2013. A Supplemental Statement of the Case (SSOC) was issued in October 2015.

In March 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). The transcript of the hearing is of record. 

The Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for further development in June 2015. The appeal is now before the Board for further appellate action.  

The Board reviewed the Veteran's electronic claims file which includes records in Virtual VA and Veterans Benefits Management System (VBMS) databases prior to rendering its decision. 


FINDINGS OF FACT

1. Throughout the appeal period, the Veteran's GERD was productive of persistently recurrent epigastric distress with pain, vomiting, dysphagia, pyrosis, and regurgitation, accompanied by substernal, arm, and shoulder pain, which caused considerable impairment of health. 

2. Throughout the appeal period, there were no signs or symptoms of hematemesis, melena, or other symptom combinations productive of severe health impairment. 


CONCLUSION OF LAW

The criteria for an evaluation of 30 percent, but no higher, for GERD have been met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. Part 4, including §§ 4.7, 4.114, Diagnostic Code (DC) 7346 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

In June 2015, the Board remanded the case for additional development. The Board finds that the RO has substantially complied with the remand directives such that no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). 

II. Increased Rating for GERD

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Pertinent regulations also provide that it is generally not necessary for all of the individual criteria to be present as set forth in the Rating Schedule, but that findings sufficient to identify the disability and level of impairment be considered.  38 C.F.R. § 4.21.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Under 38 C.F.R. § 4.114, DC 7346, a 30 percent rating is warranted 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 warranted 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. 

Factual Background and Analysis

The Veteran contends that her service-connected GERD, currently evaluated as 10 percent disabling, has worsened. Upon review of the evidence of record, the Veteran's GERD is productive of signs and symptoms contemplated by a 30 percent rating, and no more. Therefore, a rating of 30 percent for the Veteran's service-connected GERD is warranted. 

With regard to the Veteran's signs and symptoms of GERD, which are productive of considerable health impairment, the Board observes a January 2012 private treatment record that indicated that the Veteran had right arm pain that was tender to palpation.  The Veteran reported constipation and abdominal cramping for the preceding 3 weeks. The Veteran was also diagnosed with anemia. 

In January 2012, the Veteran was afforded a VA stomach and duodenal conditions (not including GERD or esophageal disorders) examination. The Veteran's GERD diagnosis was confirmed. The Veteran reported taking continuous medication for GERD. The Veteran reported recurring episodes of non-severe symptoms, which occurred 4 or more times a year, and lasted for less than one day such as transient nausea and vomiting. The Veteran also reported abdominal pain, which occurred monthly and was periodic. 

During a July 2012 VA medical examination, the Veteran denied any weight loss, diarrhea, or vomiting. The Veteran also denied chest pain. During a December 2012 examination, the Veteran reported difficulty swallowing due to increased regurgitation, which increased in the preceding 2 weeks. A March 2013 VA treatment note indicated that the Veteran experienced continual reflux symptoms, throat, stomach, and left shoulder pain.

In May 2013, the Veteran was diagnosed with solid and liquid dysphagia suggestive of esophageal spasm. The Veteran's dysphagia symptoms worsened during the preceding year.  The Veteran reported chronic reflux symptoms that occurred daily. 

In a June 2013 VA-9 statement, the Veteran reported worsened GERD symptoms and requested that her VA disability rating be increased to 30 percent. In February 2014, a VA clinician recommended certain dietary restrictions, such as spicy/greasy foods. The Veteran was encouraged to consume more fruit, fiber, and fluids. In September 2014, the Veteran was diagnosed with dyspnea and hiatal hernia. One of her chief complaints was bilateral shoulder pain.  In October 2014, the Veteran complained of intermittent chest pain and shortness of breath. An x-ray revealed no acute chest abnormality. The Veteran was scheduled for an upper gastrointestinal (GI) endoscopy in November 2014. The Veteran reported worsened GERD, dysphagia, increased heartburn, and indigestion with a regurgitation sensation after eating.  The treatment note documented the Veteran's April 2013 treatment for h. pylori. 

In January 2015, the Veteran underwent an esophagus biopsy. The Veteran was subsequently diagnosed with small hiatal hernia and no gross stricture of inflammation of the esophagus, rule out eosinophilic esophagitis versus motility disorder. A February 2015 VA treatment note indicated that the Veteran was constipated for 5 to 6 days at a time. 

At the March 2015 hearing, the Veteran testified that she was on continuous medication for GERD. The Veteran claimed that her GERD had worsened and described the occurrence of signs and symptoms such as: chest and shoulder pain 3 to 4 times a day, before/after eating, or laying down; shortness of breath; gastric distress; anemia; interrupted sleep; and losing 5 pounds in the preceding month. 

In October 2015, the Veteran was afforded a VA examination. The Veteran reported that she experienced 4 or more episodes of sleep disturbance caused by esophageal reflux, nausea, and vomiting a year, which lasted less than 1 day. The Veteran reiterated her recurrent symptoms of dysphagia, pyrosis, reflux, regurgitation, and substernal pain. During a December 2015 VA pulmonary consultation, the clinician opined that the Veteran's "uncontrolled GERD could be contributing to her dyspnea and night time awakenings." The Veteran reported 5 to 6 months of intermittent dyspnea and a history of chest pain. 

The Veteran was diagnosed with disease of the vocal cord in February 2016. The VA clinician described the Veteran's condition as "spasms of the vocal cords" and suggested that the Veteran's vocal cord problem may be associated with her recurrent reflux. In May 2016, the Veteran reported reoccurring burping and bloating. A May 2016 esophageal conditions disabilities benefits questionnaire (DBQ) indicated that the Veteran exhibited persistently recurrent epigastric distress 4 or more times per year, which lasted 1 to 9 days. Diagnostic testing revealed mild, right side diverticulosis and h. pylori. The Veteran denied any occurrence of hematemesis and melena. In October 2016, the Veteran reported losing 24 pounds. The treatment note documented the Veteran's history of esophagitis and nausea.

In January 2017, a VA clinician suggested further dietary restrictions, to include chocolate, tea, and alcohol.  Treatment records from January 2017 to the present indicated that the Veteran consistently reported worsening GERD symptoms. 

Based on the foregoing evidence, the Board finds that the Veteran's GERD more nearly approximates symptoms contemplated by a 30 percent rating, and no higher. Pursuant to DC 7346, a 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal, arm, or shoulder pain, productive of considerable impairment of health. The clinical evidence suggests that the Veteran's symptoms are productive of considerable health impairment, to include persistently recurrent abdominal pain/cramping, constipation, anemia, reflux, regurgitation, vomiting, dysphagia, and substernal/arm/shoulder pain.  The record evidence indicates that the Veteran consistently experienced GERD related episodes 4 or more times a year, which lasted up to 9 days in duration.  The record also suggests that the Veteran's "spasms of the vocal cords" may be associated with her recurrent reflux.  As such, a 30 percent disability rating is warranted in this appeal.  

With regard to a 60 percent rating, under DC 7346 a 60 percent rating is warranted 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.  A July 2012 VA treatment note indicated that the Veteran denied any weight loss. The May 2016 esophageal conditions DBQ indicated that the Veteran denied any occurrence of hematemesis and melena.  Although an October 2016 VA treatment note indicated that the Veteran lost 24 pounds, the weight lost is not material.  Although "material weight loss" is not defined by regulation, for the purposes of evaluating conditions under 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.
"Baseline weight" means the average weight for the two-year-period preceding onset of the disease.  Id.  The evidence does not persuasively show that the overall effect of her GERD diagnosis, or in combination with other symptoms, caused severe health impairment.  The Schedule for Rating Disabilities does not define the word "severe". However, Merriam-Webster defines severe as "of great degree." See www.merriam-webster.com/dictionary/severe (11/08/17).  In the instant appeal, the January 2012 VA stomach and duodenal conditions examination report indicated that the Veteran reported recurring episodes of non-severe symptoms, which occurred 4 or more times a year, and lasted for less than one day. The Veteran's GERD related episodes were persistently recurrent and productive of considerable health impairment.  Ultimately, the evidence of record does not indicate that the Veteran's GERD symptoms were "of great degree" as to warrant a 60 percent rating. 

For the foregoing reasons, the Board finds that entitlement to a 30 percent rating for the Veteran's GERD is warranted. 


ORDER

Entitlement to an initial rating of 30 percent for GERD is granted, subject to the laws and regulations governing the award of monetary benefits.



____________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs