Citation Nr: 1801887	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  07-38 371	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUE

Entitlement to an initial rating in excess of 30 percent for gastroesophageal reflux disease (GERD) and gastritis.


REPRESENTATION

Veteran represented by:	John S. Berry, Attorney


ATTORNEY FOR THE BOARD

S. S. Mahoney, Associate Counsel 






INTRODUCTION

The Veteran served on active duty in the United States Army from August 1967 to March 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which granted service connection for GERD and gastritis and assigned an initial 10 percent rating, effective February 4, 2009.

In July 2016, the Board, in part, denied the Veteran's claim for an increased rating.  The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court).  In January 2017, the Court issued an order granting a Joint Motion for Remand (JMR), vacating the Board's decision and remanding the case back to the Board.  In July 2017, the Board remanded the issue on appeal for further development.  

During the pendency of this appeal, an October 2017 rating decision increased the Veteran's service-connected GERD and gastritis rating to 30 percent for the entire period on appeal.


FINDING OF FACT

For the entire appeal period, the Veteran's GERD and gastritis has been manifested by epigastric distress, dysphagia, pyrosis, reflux, regurgitation, pain, sleep disturbance, nausea, and other combined symptoms productive of severe impairment of health.





CONCLUSION OF LAW

The criteria for a maximum 60 percent rating for GERD and gastritis are met for the entire appeal period.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Codes (DCs) 7307-7346 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

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.  The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations.  38 U.S.C. § 1155.  The disability must be viewed in relation to its history.  38 C.F.R. § 4.1.  If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; 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 favor of the claimant.  38 C.F.R. § 4.3.

Pursuant to 38 C.F.R. § 4.113, certain 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 "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."  Id.

Ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other.  A single evaluation will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.  38 C.F.R. § 4.114. 

The Veteran's GERD and gastritis is currently rated at 30 percent disabling under DCs 7307-7346.  DC 7307 provides a 30 percent rating for chronic hypertrophic gastritis with multiple small eroded or ulcerated areas, and symptoms.  38 C.F.R. 
§ 4.114, DC 7307.  A maximum 60 percent rating is assigned for chronic hypertrophic gastritis with severe hemorrhages, or large ulcerated or eroded areas.  Id.

Pursuant to DC 7346, a 30 percent disability rating is warranted for hiatal hernia manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  38 C.F.R. § 4.114, DC 7346.  A maximum 60 percent rating is assigned for hiatal hernia with 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.

By way of background, a November 2014 rating decision awarded service connection for GERD and gastritis and assigned a 10 percent rating pursuant to DCs 7307-7346, effective February 4, 2009.  Thereafter, a July 2016 rating decision increased the rating to 30 percent, effective April 22, 2013, the date of his VA examination.  Finally, an October 2017 rating decision assigned the 30 percent rating retroactively from February 4, 2009, the date of his claim.

Upon review of the totality of the record, the Board finds that a 60 percent rating is warranted for GERD and gastritis under DC 7346 for the entire period on appeal, effective February 4, 2009.  

In this regard, there is evidence of combined symptoms productive of severe health impairment of health.  The Veteran has a very lengthy history of GERD and upper gastrointestinal complaints, and continues to experience difficulty with upper gastrointestinal distress.  See April 2013 VA examination report.  In January 2009, he reported several instances of epigastric abdominal pain despite use of medication, and in February 2009, the Veteran again complained of continued epigastric burning, pain, diarrhea, and was only eating soup and jello.  He had been seen in the emergency room due to these symptoms.  The assessment included persistent dyspepsia previously associated with diarrhea and vomiting.  Upon examinations over the appeal period, signs and symptoms have included diffuse thickening of his mid and lower esophagus, chronical duodenal inflammation, epigastric distress, dysphagia, pyrosis (heartburn), reflux, regurgitation, intense pain, sleep disturbance caused by esophageal reflux, and nausea.  See October 2011, October 2012, April 2013, January 2015, and August 2017 VA examination reports; February 2016 VA treatment.  Moreover, the August 2017 VA examiner specifically categorized the severity, symptoms, and functional impacts of the Veteran's GERD and gastritis to be "SEVERE without the use of medications" or the ameliorative effects of the same, and the severity of the Veteran's disability has remained consistent over the appeal period.

Thus, based on the above-cited evidences, as well as the Veteran's competent and credible reports as to the nature of his gastrointestinal symptoms throughout the course of the appeal, a 60 percent rating for GERD and gastritis is warranted from February 4, 2009, based on symptom combinations productive of severe impairment of health. 

A 60 percent rating is the maximum schedular rating that can be assigned under both DCs 7307 and 7346.  As emphasized above, separate ratings under DCs 7307 and 7346 are precluded, and given the Veteran's diagnoses of GERD and gastritis, no other DCs are applicable.  See 38 C.F.R. § 4.114; Copeland v. McDonald, 27 Vet. App. 333, 337 (2015)(when a condition is specifically listed in the rating schedule, it may not be rated by analogy and should be rated under the diagnostic code that specifically pertains to it).  

Finally, to the extent the Veteran's 2015 Notice of Disagreement references the possibility of a separate compensable rating for a documented esophageal stricture, the Board finds that no such rating under DC 7203 is warranted at any point during the appeal period, as the stricture has been consistently described as asymptomatic.  See April 2013 and January 2015 VA examination reports.  38 C.F.R. § 4.31; 38 C.F.R. § 4.114, DC 7203.  In this regard, the Board emphasizes that the parties to the JMR took no issue with the lack of assignment of a compensable rating for the Veteran's esophageal stricture in the prior July 2016 decision.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) ("Court will [not] review BVA decisions in a piecemeal fashion"); see also Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992) ("[a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court").


ORDER

From February 4, 2009, a maximum 60 percent rating for GERD and gastritis is granted.



____________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs