Citation Nr: 1800159	
Decision Date: 01/03/18    Archive Date: 01/19/18

DOCKET NO.  13-27 811	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to an initial disability rating in excess of 10 percent for gastroesophageal reflux disease.


REPRESENTATION

Appellant represented by:	North Carolina Division of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Alexia E. Palacios-Peters, Associate Counsel

INTRODUCTION

The Veteran had active service from July 1987 to June 1993.

This matter comes before the Board of Veteran's Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs Regional Office (RO) in Winston-Salem, North Carolina in which the RO granted service connection for gastroesophageal reflux disease (GERD) and assigned a 10 percent disability rating.

A timely Notice of Disagreement ("NOD") was received from the Veteran in June 2012. After a Statement of the Case was issued in July 2013, the Veteran perfected her appeal in September 2013, via VA Form 9 substantive appeal. A supplemental statement of the case was issued in November 2014.

The Veteran was afforded a hearing before the undersigned Veterans Law Judge in April 2016. A written transcript of this hearing has been prepared and incorporated into the evidence of record.

In June 2016, the Board remanded the claim on appeal for additional development and the case now returns for further appellate review.

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Therefore, any future consideration of the Veteran's claim should take into account the existence of the electronic record.


FINDING OF FACT

The Veteran's gastrointestinal disorder was manifested by persistently recurrent epigastric distress, with dysphagia, pyrosis and regurgitation, accompanied by substernal and arm and shoulder pain, productive of considerable impairment of health.
CONCLUSION OF LAW

The criteria for an initial rating of 30 percent, but no more, for GERD with hiatal hernia have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.114, Diagnostic Code 7346 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

VCAA

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).

INCREASED RATING - GERD

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4 (2017). The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).

In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2017); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

Here, the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection, and consideration of the appropriateness of "staged ratings" are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 

Where there is a question as to which of two evaluations shall be applied, 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. See 38 C.F.R. § 4.7 (2017). Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2017).

The Veteran contends that her service-connected GERD warrants an initial compensable rating in excess of 10 percent pursuant to DC 7346 for disabilities of the digestive system. 38 C.F.R. § 4.114, DC 7346.

Under DC 7346 for hernia hiatal, a 30 percent disability 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. Id. The maximum 60 percent disability 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. Id.

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.  38 C.F.R. § 4.112 (2017).  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.  Id.  

VA treatment records in May 2010 show the Veteran had mild regurgitation. In September 2000, the Veteran had a history of nausea and epigastric pain for the prior six months. See September 2000 Private Treatment Records. The Veteran had ongoing reflux problems in October 2000. See October 2000 Private Treatment Records. Records show the Veteran had a history of reflux in January 2007 but the reflux was under control. See January 2007 Private Treatment Records.

Private treatment records show the Veteran complained of severe epigastric discomfort with no vomiting in November 2010. See November 2010 Private Treatment Records. Private treatment records in April, June, and July 2016 show the Veteran had bad acid reflux and stomach pain or discomfort. In June 2016, the Veteran stated her left arm hurt sometimes. See June 2016 Private Treatment Records.

A December 2010 VA examination found the Veteran's symptoms of GERD to include dysphagia with solids and liquids which occurred once per week, pyrosis every couple of days, epigastric pain that radiates to the mid substernal region (same time as heartburn) every couple of days, reflux or regurgitation every couple of days, and nausea every couple of days. See December 2010 VA examination. She had no hematemesis, no melena, and no vomiting. Id.

The Veteran's VA examination in August 2016 found the Veteran's symptoms included reflux, substernal arm pain, sleep disturbance caused by esophageal reflux, and nausea. See August 2016 VA examination. The Veteran reported that she experiences reflux daily, which causes her to choke when supine. Id.

The Veteran's lay statements indicate she has had persistent heartburn, acid regurgitation, difficulty swallowing, nausea, and pains in her chest, left shoulder and arm. See Veteran's Statements from December 2011, May 2012, and September 2013.

At the Board hearing, the Veteran stated her current symptoms include constant pressure in her chest, fizzing in the throat based on acid, and radiating pain that goes into her left arm. See Transcript of April 2016 Board Hearing at 3. The Veteran was nauseous with chest pain and stated she experiences this discomfort daily. Id. at 5, 6. Her esophageal distress occurs at least once a day. Id. at 6. The Veteran also experiences pain in her left arm, and difficulty swallowing, and she gets sore throats due to her acid reflux. Id. at 7.

Based on the evidence, the Board finds that the Veteran's GERD more nearly approximates the criteria contemplated by the 30 percent rating under DC 7346. The Veteran's December 2010 VA examination documented the Veteran's symptoms showed persistent recurrent epigastric distress with dysphagia, pyrosis, and regurgitation along with pain in the arm. The VA and private treatment records as well as lay testimony show these symptoms have been chronic since prior to the date of the receipt of the Veteran's claim in October 2010.

However, the evidence does not support the maximum 60 percent rating under DC 7346. While the Veteran has pain, the evidence shows the Veteran does not have symptoms productive of severe impairment of health.  The medical evidence and lay evidence consistently reveal that the Veteran has no vomiting, hematemesis, melena, and anemia.  The Veteran has not demonstrated a material loss in her weight.  Therefore, the Board finds a 30 percent rating, but no higher, is warranted.

The Veteran has not raised any other issues with respect to the increased rating claim, nor have any other assertions been reasonably raised by the record.  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).



ORDER

Entitlement to a higher initial rating of 30 percent for gastroesophageal reflux disease is granted, subject to the law and regulations governing the award of monetary benefits. 



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



Department of Veterans Affairs