Citation Nr: 1754317 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 10-49 115 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased evaluation in excess of 10 percent for gastroesophageal reflux disease (GERD), also claimed as acid reflux. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Rachel E. Jensen, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from December 1985 to December 1988 and November 1989 to February 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied an increased rating for the Veteran's service-connected GERD. In a subsequent March 2013 rating decision, the RO awarded the Veteran a compensable rating of 10 percent. Although the RO granted a higher disability rating, the claim remains in controversy because the Veteran is not in receipt of the maximum benefit allowable. See A.B. v. Brown, 6 Vet. App. 35 (1993). This matter was previously before the Board in February 2017 at which time it was remanded for further evidentiary development. All necessary development having been accomplished, the issue is properly before the Board. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT Without taking into consideration relief provided by medication, throughout the period on appeal, the Veteran's GERD was manifested by persistently recurrent epigastric distress with pyrosis, regurgitation, and difficulty swallowing, accompanied by substernal and left arm pain, productive of considerable impairment of health. CONCLUSION OF LAW The criteria for a rating of 30 percent, and no higher, for GERD have been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. § 4.114, Diagnostic Code (DC) 7399-7346 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor his 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 a duty to assist argument). Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 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); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). This assists in determining, among other things, entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. The Veteran's GERD has been assigned a 10 percent rating. GERD is rated by analogy to hiatal hernia, under Diagnostic Code (DC) 7399-7346. 38 C.F.R. § 4.114. When an unlisted condition is encountered it is permissible to rate it under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings, nor will ratings assigned to organic disease and injuries be assigned by analogy to conditions of functional origin. See 38 C.F.R. § 4.20. The Board finds that DC 7346 best approximates the anatomical localization and symptomatology of the Veteran's GERD and that there are no other potential diagnostic codes under which to accurately rate his disability. Therefore, the Veteran's GERD is best evaluated under this diagnostic code. Under DC 7346, a 10 percent evaluation is warranted when two or more of the symptoms for the 30 percent evaluation are present with less severity. A 30 percent rating is warranted where 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. A 60 percent evaluation is warranted where there are 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. The Veteran claims that his GERD is worse than currently reflected by his evaluation of 10 percent. The Veteran has indicated that he takes continuous medication to treat this condition and experiences heartburn and reflux, arm pain, and regurgitation. He has undergone several VA and private examinations to assess the severity of his disability, submitted private treatment records, and provided several lay statements regarding his symptoms. In July 2009, a VA clinician noted that the Veteran had esophagitis chronic reflux, well-controlled with Nexium and dietary changes. The Veteran submitted a statement in February 2010 stating that he takes medication to keep from having severe heartburn attacks. A private examination was positive for mild GERD and negative for reflux esophagitis or additional GERD complications. Also in February 2010, the Veteran underwent a VA examination which diagnosed GERD and gastritis. The Veteran stated that he experienced episodic pains in his mid-chest and mid-upper back, but did not report difficulty swallowing. In a December 2010 statement, the Veteran stated that the medications he takes do help control his reflux, but he still has attacks. He noted that the medications were stronger than they were when he was diagnosed ten years previously, but they still did not stop regurgitation. He further noted that his GERD was not a constant action, and was thus more severe on some days than others. A private treatment record from September 2012 indicated that the Veteran suffered from a burning discomfort in his lower chest and some heartburn. No dysphagia and no other gastrointestinal (GI) complaints were reported. An esophagogastroduodenoscopy (EGD) test was done in October 2012 which revealed moderate gastritis in the body and the antrum of the stomach, Barrett's esophagus in the distal esophagus, a small hiatal hernia, and GERD with no endoscopic damage. Biopsies of the stomach and esophagus showed mild, chronic, non-specific gastritis with mild foveolar hyperplasia, negative for helicobacter pylori, and chronic inflammation of gastric-type mucosa with focal intestinal metaplasia present, negative for dysplasia. A private clinician examined the Veteran in December 2012 and diagnosed GERD, hiatal hernia, Barrett's esophagus, and gastritis. The Veteran reported four or more instances of ten or more days per year of persistently recurrent epigastric distress, pyrosis, reflux, and sleep disturbance, and four or more instances of one to nine days of substernal or arm or shoulder pain. The clinician stated that the Veteran's condition did not impact his ability to work. A March 2013 private treatment record indicated that the Veteran had symptoms of reflux and regurgitation with pressure in his lower esophagus and chest. At a May 2015 private appointment, the Veteran had no GI complaints such as abdominal pain, change in bowel pattern, diarrhea, constipation, rectal bleeding, or melena. The Veteran denied any upper GI complaints such as heartburn, reflux, dysphagia, odynophagia, nausea, vomiting, or decreased appetite. It was reported that he remains on Nexium for GERD. A June 2015 private treatment record diagnosed gastroesophageal junction-type mucosa with mild chronic carditis but no intestinal metaplasia and no dysplasia. An EGD revealed chronic inflammation but no Barrett's esophagus. In May 2016, a private clinician noted that the Veteran took Nexium twice per day and Zantac before bed, but still had breakthrough heartburn and mid-sternal chest pain and epigastric pain with radiation to the left arm. The clinician stated that the pain was related to eating and not any sort of physical activity. The Veteran reported some belching, burping, and abdominal bloating. In a May 2016 statement from the Veteran, he stated that he has problems swallowing liquids at times, that he has been to the emergency room for his GERD because he is unable to tell whether his pain is related to GERD or if he is having a heart attack, and that he sleeps with his bed raised at the headboard. In June 2016, the Veteran had a gastric emptying test which did not indicate reflux or hiatal hernia. Another VA examination was conducted in April 2017 at which the clinician pointed to the 2012 EGD results showing hiatal hernia, Barrett's esophagitis, and reflux, and the 2015 EGD results not indicating hiatal hernia and Barrett's esophagitis, and found that this confirmed that the Veteran's symptoms improved while using the reflux medications, noting that the 2015 test was "a big improvement" on the 2012 test. She continued that the 2016 gastric emptying test further supported the improvement of his condition, but did note that the test only observes the stomach for a minute as emptying is taking place. The clinician postulated that the fact that the Veteran has problems with his left shoulder meant it was the most likely explanation for his left arm pain. Additionally, she stated that no tests indicated severe reflux which sometimes causes shoulder pain. She concluded that it was certain from the test results that the Veteran has chronic esophagitis and GERD, but that his Barrett's esophagitis and hiatal hernia resolved with treatment. Following the addition to the record of private medical records not previously before the examiner, an addendum opinion was obtained in September 2017 which indicated that the records had been reviewed and the clinician's opinion had not changed. The United States Court of Appeals for Veterans Claims (Court) has held that VA may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet App 56, 61 (2012). The rating criteria for Diagnostic Code 7346 do not contemplate the effects of medication on his GERD, and so the Board must consider the Veteran's symptoms without medication. The April 2017 VA examiner found that the EGD results over time clearly indicated a "big improvement" in the Veteran's diagnoses, due to the medications he took regularly, specifically noting that previously diagnosed Barrett's esophagitis and hiatal hernia were no longer evident. The Veteran's medical records indicated that he takes medication three times daily and still experiences breakthrough symptoms. Based on this evidence and the Veteran's competent and credible reports of frequent heartburn, difficulty swallowing, regurgitation, chest and left arm pain, and that he must sleep at an elevated level, the Board finds that the record as a whole supports a finding that he suffers from persistently recurrent epigastric distress with pyrosis and regurgitation, accompanied by substernal and arm pain. The record thus reflects the presence of symptoms that mark a 30 percent rating under the rating schedule. In light of the presence of these symptoms, and the medical finding that the Veteran's continual use of medication has markedly improved his symptoms, the Board finds that, resolving all reasonable doubt in the Veteran's favor, it is at least as likely as not that the Veteran's GERD is productive of considerable impairment of health, warranting a 30 percent rating. The record does not warrant a rating of 60 percent. There is no indication of vomiting or material weight loss and hematemesis or melena with moderate anemia. At no point throughout the record has a clinician recorded these symptoms or regarded the Veteran's condition as severe. Therefore, the preponderance of evidence is against a rating of 60 percent. Under Rice v. Shinseki, the Board has jurisdiction over a total disability rating based on individual unemployability (TDIU) claim as part and parcel of a Veteran's increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Veteran has not asserted that he is unemployable due to his service-connected disabilities and there is no evidence in the record supporting such a claim. Therefore, the Board finds that a TDIU based on the Veteran's service-connected disabilities is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 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)." ORDER An evaluation of 30 percent, but no higher, for GERD is granted. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs