Citation Nr: 1738844 Decision Date: 09/13/17 Archive Date: 09/22/17 DOCKET NO. 10-24 484 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased rating for service-connected gastroesophageal reflux disease (GERD) with history of hiatal hernia, including a compensable rating prior to July 31, 2014, a rating in excess of 10 percent prior to March 21, 2015, and a rating in excess of 30 percent from March 21, 2015. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and M.Y. ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1978 to December 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) above, which continued a noncompensable rating for service-connected peptic ulcer disease, which is now characterized as GERD with a history of hiatal hernia. The Veteran perfected an appeal as to the rating assigned to his disability, after which the RO increased the Veteran's disability rating to 10 percent, effective July 31, 2014, and 30 percent, effective March 21, 2015. See April 2015 rating decision. Despite the assignment of the increased ratings, as higher ratings are available throughout the appeal period and the Veteran is presumed to seek the maximum available benefit, the increased rating claim remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In July 2014, the Veteran and his wife, M.Y, testified before the undersigned Veterans Law Judge at a hearing conducted at the local RO. A transcript of the hearing is associated with the claims file. This appeal was most recently remanded by the Board in September 2016, at which time the appeal included a claim of entitlement to service connection for sleep apnea as well as the increased rating claim for GERD. A review of the record reveals that all requested development was conducted after which the RO granted service connection for obstructive sleep apnea, which is considered a full grant of the benefit sought with respect to that issue. See March 2017 rating decision. Therefore, that issue is no longer on appeal. The increased rating claim for GERD has been returned to the Board for further consideration. FINDINGS OF FACT 1. From April 10, 2009 to July 30, 2014, the Veteran's service-connected GERD with history of hiatal hernia was manifested by esophageal stricture, which resulted in difficulty breathing and having to regurgitate after eating, as well as GERD symptoms, such as esophageal distress, nausea, vomiting, and less frequent diarrhea, that occurred two to three times a week and were moderate in nature. 2. Since July 31, 2014, the Veteran's service-connected GERD with history of hiatal hernia has continued to be manifested by esophageal stricture and GERD symptoms that occur five to six times a week and result in difficulty sleeping, which more nearly approximate a severe overall disability. CONCLUSIONS OF LAW 1. From April 10, 2009 to July 30, 2014, the schedular criteria for a 30 percent rating, but no higher, for service-connected GERD with history of hiatal hernia, have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.114, Diagnostic Code 7346-7203 (2016). 2. From July 31, 2014, the schedular criteria for a 50 percent rating, but no higher, for service-connected GERD with history of hiatal hernia, have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.114, Diagnostic Code (DC) 7346-7203 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Neither the Veteran nor the representative in this case has referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Veteran seeks a higher rating for his service-connected GERD. 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.A. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107 (b). 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. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's GERD is rated under 38 C.F.R. § 4.115a, DC 7305-7346. The hyphenated diagnostic codes assigned in this case indicates that duodenal ulcer is the service-connected disorder which is rated under DC 7305, while the residual condition (to which the Veteran's disability is rated by analogy) is hiatal hernia, which is evaluated under DC 7346. See 38 C.F.R. § 4.27. Nevertheless, the Board will consider whether the Veteran's GERD warrants an increased rating under all potentially applicable diagnostic codes, including DCs 7305 and 7346. In this regard, the law provides that ratings for the digestive system are not to be combined but rather a single evaluation will be assigned under the diagnostic code that reflects the predominant disability picture. 38 C.F.R. § 4.114. Indeed, assignment of a particular diagnostic code to evaluate a disability is completely dependent on the facts of a particular case, see Butts v. Brown, 5 Vet. App. 532, 538 (1993), and as discussed below, review of the record shows the Veteran's GERD disability is also manifested by an esophageal stricture, which is evaluated under DC 7203. Therefore, the Board will also consider whether a higher rating is warranted under that code as well. As noted hiatal hernia is evaluated under DC 7346 which provides that a 10 percent evaluation is warranted when there is at least one recurring attack of typical severe abdominal pain in the past year. A 30 percent evaluation is warranted when there is persistently recurrent epigastric distress with dysphasia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent evaluation contemplates a level of impairment which includes 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, DC 7346. Duodenal ulcer is evaluated under DC 7305 which provides that an ulcer warrants a 10 percent rating if mild, with recurring symptoms once or twice a year; a 20 percent rating if moderate, with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations; a 40 percent rating if moderately severe, with less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year; and a 60 percent rating if severe, with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health. Finally, a stricture of the esophagus warrants a 30 percent rating if moderate; a 50 percent rating if severe and permitting liquids only; and an 80 percent rating if permitting passage of liquids only, with marked impairment of general health. The evidence pertinent to this appeal includes VA examination reports dated May 2009, March 2015, and July 2015, VA treatment records, the testimony provided during the July 2014 Board hearing, and the Veteran's other statements of record. During the May 2009 VA/QTC examination, the Veteran reported experiencing constant, severe pain in his abdomen and esophagus, which he stated was alleviated by taking an over the counter acid reducer and eating slowly. He stated that he had to eat very slowly to prevent vomiting and regurgitation and, in this regard, he endorsed having nausea and vomiting two times a week, with frequent regurgitation occurring during meals. The Veteran also endorsed having diarrhea but he denied constipation, abdominal distention, vomiting blood (hematemesis), or black tarry stools (melena). While the examiner noted the Veteran had lost 10 pounds in the previous two months, he noted there were no significant signs of anemia or findings of malnutrition. In statements submitted in June 2009 and June 2010, the Veteran continued to report having intense acid reflux two times a week, which he stated caused regurgitation and vomiting. He also reported that, if he does not eat slowly, he has difficulty breathing, feels like there is food stuck in the middle of his chest, and experiences severe pain which causes regurgitation. He stated that these episodes occur two times a week and that he also had bouts of indigestion that lasted about an hour. The Veteran continued to endorse feeling like food is stuck in the middle of his chest several times a week during the July 2014 Board hearing. He testified that the feeling is very painful and resulted in difficulty breathing, for which he goes to the bathroom a couple times a day to regurgitate and get his breath back. He also reported having acid reflux with a burning sensation in his throat and bad taste in his mouth. His wife corroborated the symptoms reported by the Veteran, which he stated occurred between four to six times a week. During the March 2015 VA examination, the Veteran reported that he has to eat slowly because food catches in the middle of his chest which causes difficulty breathing. He stated that the feeling usually resolves but forces him to regurgitate 80 percent of the time in order to relieve the stuck feeling. He also reported having the foregoing sensation after swallowing water. The Veteran reported having epigastric discomfort after forced vomiting, and he also endorsed having heartburn. The examiner noted the Veteran's signs and symptoms of persistently recurrent epigastric distress, dysphagia, pyrosis, and regurgitation were productive of considerable health impairment and also included sleep disturbance due to esophageal reflux and moderate esophageal stricture. The July 2015 VA examination report also shows the Veteran continued to report having heartburn and regurgitation, and the examiner noted he had moderate esophageal stricture that was shown on a barium swallow test in April 2015 and resulted in intermittent dysphagia to solids and liquids. As for functional impairment, the Veteran has consistently reported that his disability prevented him from eating certain foods and caused difficulty at work, as he is occasionally late reporting back to work after lunch because he needs extra time to force vomiting after eating. See Veteran statements dated June 2009 and June 2010; March 2015 VA examination report. Based on the foregoing lay and medical evidence, the Board finds the Veteran's service-connected disability has been manifested by symptoms associated with GERD and esophageal stricture throughout the appeal period. Indeed, the Veteran has consistently endorsed having esophageal distress with varying symptoms of nausea, heartburn, and acid reflux, as well as difficulty swallowing and regurgitation. In this context, the Board notes that the March 2015 VA examiner clarified the Veteran's diagnosis and noted that, while the Veteran had a peptic ulcer on one occasion during service, he did not likely have peptic ulcer disease after service. Instead, the examiner stated that the Veteran's disability is more appropriately described as GERD and hiatal hernia. Given this evidence, the Board finds that DC 7305, which evaluates duodenal ulcer, is not applicable in this case. While the March 2015 VA examiner re-characterized the Veteran's service-connected disability as GERD and hiatal hernia, she also noted that his disability is manifested by esophageal stricture, which she stated is a common symptom of GERD. The March 2015 VA examiner specifically attributed the Veteran's symptoms of difficulty breathing, feeling something stuck in the middle of his chest, and having to regurgitate after eating to his esophageal stricture, which was confirmed by a barium swallow test conducted in April 2015. While an esophageal stricture was not formally diagnosed until after the April 2015 barium swallow was conducted, the symptoms noted above have been documented since the May 2009 VA examination, which did not include a barium swallow. However, because the Veteran has endorsed having difficulty breathing and regurgitating after eating throughout the appeal period, the Board will resolve doubt in favor of the Veteran and finds that his service-connected disability has been likely manifested by esophageal stricture throughout the appeal period. As noted, esophageal stricture is evaluated under DC 7203. Nevertheless, in addition to the symptoms attributable to the esophageal stricture, the Veteran's service-connected disability has also been manifested by reflux (GERD) symptoms throughout the appeal period, such as esophageal distress, which has been variously described as abdominal pain and heartburn, with additional symptoms of nausea, vomiting, and less frequent diarrhea. As noted, the Veteran's GERD is rated by analogy to hiatal hernia under DC 7245. Given the foregoing, the Board finds the Veteran's service-connected disability is more appropriately rated under DC 7346-7203, to represent GERD as the service-connected disability (which is rated under 7346), with esophageal stricture as the residual condition (to which the overall disability is rated by analogy) under DC 7203. See 38 C.F.R. § 4.27. The lay and medical evidence reflects that the Veteran's esophageal stricture and GERD symptoms were initially more transient in nature and occurred two to three times a week. See e.g., May 2009 VA examination report; Veteran statements dated June 2009 and June 2010. The Board finds that the esophageal stricture and GERD symptoms described above more nearly approximated a moderate disability, which warrants a 30 percent rating under DC 7203 since the inception of this appeal on April 10, 2009, the date of receipt of his increased rating claim. However, the evidence shows the Veteran's disability has worsened throughout the appeal period. Indeed, beginning July 2014, the Veteran reported that his symptoms occurred five to six times a week and resulted in difficulty sleeping. See e.g., July 2014 hearing transcript; March 2015 VA examination report; July 2016 Informal Hearing Presentation. Therefore, based on the foregoing, the Board finds the Veteran's additional and more frequent esophageal stricture and GERD symptoms are representative of a severe disability, which warrants a 50 percent rating under DC 7203 as of July 31, 2014. In making this determination, the Board notes that, while the Veteran's esophageal stricture is not shown to only permit ingestion of liquids, as specifically contemplated by a 50 percent rating under DC 7203, the combined nature of his esophageal stricture and GERD symptoms resulted in an overall severe disability picture, which warrants a higher rating than initially assigned from April 2009. A higher 80 percent rating is not warranted under DC 7203, however, as the Veteran's symptoms, while severe, are not productive of marked impairment of general health, with evidence such as weight loss, incapacitating episodes, or other debilitating symptoms. The Board has also considered whether assigning a higher, 60 percent rating under DC 7346 is more appropriate in this case; however, even when considering the combined impact of the Veteran's GERD and esophageal stricture symptoms, his disability is not shown to have resulted in material weight loss, hematemesis, melena, or moderate anemia, which are symptoms that are specifically enumerated as reflective of a severe impairment of health to warrant a 60 percent rating under DC 7346. In this context, the Board has considered whether rating the Veteran's service-connected disability under another diagnostic code would result in a higher rating; however, review of the regulations for evaluation of digestive conditions discloses no other diagnostic code that more appropriately reflects the disability at issue. Instead, the Board finds that the staged ratings assigned under DC 7346-7203 in this case adequately compensate the Veteran for the functional impairment caused by combined effects of his esophageal stricture and GERD symptoms that are attributable to his service-connected disability. Finally, the Board notes that, while the Veteran's service-connected disability is shown to impact his occupational functioning, in that he takes longer during lunch to regurgitate after eating, such impact does not rise to the level of requiring consideration of the assignment of a total disability based upon individual unemployability (TDIU), as the evidence does not show his disability has rendered him unable to secure or maintain employment. On the contrary, the Veteran has maintained employment throughout the appeal period, without any evidence showing his disability has been incapacitating for any significant amount of time. Therefore, the Board finds that TDIU has not been raised by the record and need not be addressed any further. For the foregoing reasons, the Board finds the Veteran's service-connected GERD with history of hiatal hernia warrants a 30 percent rating, but no higher, since April 10, 2009, and a 50 percent rating, but no higher, from July 31, 2014. In reaching these determinations, the Board has considered the benefit of the doubt doctrine, where applicable. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER From April 10, 2009, the Veteran's service-connected GERD with history of hiatal hernia warrants a 30 percent rating, but no higher. From July 31, 2014, the Veteran's service-connected GERD with history of hiatal hernia warrants a 50 percent rating, but no higher. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs