Citation Nr: 18140551 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 13-31 882 DATE: October 3, 2018 ORDER Entitlement to a disability rating in excess of 10 percent for gastroesophageal reflux disease (GERD) prior to December 6, 2017, is denied. Entitlement to a disability rating of 30 percent, but no higher, for GERD from December 6, 2017, is granted. FINDINGS OF FACT 1. Prior to December 6, 2017, the Veteran’s GERD was manifested by mild symptoms such as daily heartburn, frequent regurgitation accompanied by chest pain and painful bloating, and recurring reflux. 2. As of December 6, 2017, the Veteran’s GERD has been manifested by persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, bloating substernal pain, sleep disturbance, and nausea; such symptoms approximate considerable impairment of health. CONCLUSIONS OF LAW 1. Prior to December 6, 2017, the criteria for a disability rating in excess of 10 percent for GERD were not met. 38 U.S.C. §§ 1155, 5017; 38 C.F.R. §§ 3.102, 4.114, Diagnostic Code (DC) 7346. 2. As of December 6, 2017, the criteria for a disability rating of 30 percent, but no higher, for GERD are met. 38 U.S.C. §§ 1155, 5017; 38 C.F.R. §§ 3.102, 4.7, 4.114, DC 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1972 to August 1976, and from August 1987 to July 2000. Increased Rating Claim 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 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; 38 C.F.R. § 4.1. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, are to be avoided. 38 C.F.R. § 4.14. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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, 58 (1994). Nevertheless, the Board acknowledges that 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, 509-10 (2007). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a disability rating in excess of 10 percent for GERD The Veteran contends that a higher rating for his service-connected GERD is warranted. In his October 2013 VA Form 9, the Veteran reported that his GERD severely impacted his life as he had “great difficulty sleeping” and had to try to sleep sitting up, had frequent regurgitation accompanied by chest pain and painful bloating, and was treated for arm and shoulder pain for the past two years, which may be associated with GERD. Additionally, in his August 2018 brief, the Veteran contended that his symptoms more closely approximated a 30 percent rating. He noted that the December 2017 VA examiner observed five out of the six requirements for a 30 percent rating, specifically persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, and substernal pain. However, he noted that the criteria do not account for additional symptoms, such as breathing difficulty, sleep disturbance, nausea, chest pain, and painful bloating, or the frequency of such symptoms. The Board finds that the weight of the evidence demonstrates that the Veteran’s GERD more nearly approximates a 10 percent rating prior to December 6, 2017. However, as of December 6, 2017, it more nearly approximates a 30 percent rating, but no higher. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert, supra. The Veteran was initially assigned a noncompensable initial rating for his service-connected GERD under 38 C.F.R. § 4.114, DC 7346. However, in January 2018, the Regional Office increased the rating to 10 percent, effective February 3, 2010. GERD is not among the listed conditions in the Rating Schedule. When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The Board finds that GERD is most closely analogous to DC 7346 (hiatal hernia) in terms of symptomatology and resulting disability pictures. Under DC 7346, a 10 percent rating is warranted for a hiatal hernia with two or more of the symptoms required for a 30 percent evaluation which are of lesser severity than is required for a 30 percent evaluation. A 30 percent rating requires persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation accompanied by substernal, arm, or shoulder pain which is productive of considerable impairment of health. A 60 percent rating requires symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Turning to the evidence, a March 2011 VA examination report reflects review of the Veteran’s claims file, and his report of daily heartburn. There was no history of esophageal neoplasm, nausea, vomiting, dysphagia, esophageal distress, regurgitation, hematemesis or melena, or esophageal dilatation. His overall general health was good with no signs of anemia or weight loss. A March 2013 VA treatment record reflects that an esophagogastroduodenoscopy (EGD) and colonoscopy was performed due to a dysphagia screening; the EGD was normal. The Veteran complained of recurring reflux with a sour taste, coughing, or choking that woke him up. His weight was stable. He was assessed with GERD that was mildly symptomatic. A December 6, 2017, VA examination report reflects review of the Veteran’s claims file and a diagnosis of GERD. The Veteran reported acid coming up at night while sleeping, which caused breathing difficulty; this was improved with sleeping in an upright position at night. The Veteran experienced persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal pain, and sleep disturbance and nausea lasting less than one day and occurring four or more times per year. Based on this evidence, the Board finds that the Veteran’s GERD disability more nearly approximates a 10 percent rating prior to December 6, 2017. However, it more nearly approximates a 30 percent rating, but no higher, as of December 6, 2017. In making this determination, the Board considered the Veteran’s contentions with respect to the nature of his service-connected disability and notes that he is competent to describe observable symptoms associated with his disability. However, in evaluating this claim, the Board also considers the competent, credible, and probative medical evidence regarding the severity of his GERD which considers the Veteran’s reported symptoms, including the frequency and severity thereof, but also provides clinical evaluation of the disability, as well as evaluation of functional impairment caused thereby. Prior to December 6, 2017, the Veteran’s GERD was manifested by daily heartburn or pyrosis, frequent regurgitation, and recurring reflux. The Veteran noted that he was unable to sleep at night lying down and tried to sleep sitting up due to the reflux. There is no other indication or evidence of persistently recurring epigastric distress with dysphagia, regurgitation accompanied by substernal or arm or shoulder pain, or any other symptoms productive of considerable impairment of health. His GERD was described by the examiner as mildly symptomatic with a normal EGD. Based on the record as a whole, the Board finds that the severity of the Veteran’s GERD more closely approximated a 10 percent rating prior to December 6, 2017, as there is no evidence showing that the GERD caused a considerable impairment of health. However, as of December 6, 2017, the Board finds that a 30 percent rating, but no higher, is warranted for the Veteran’s GERD. The December 2017 VA examiner found that the Veteran had persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal pain, and sleep disturbance and nausea, which are indicative of considerable impairment of health. The Board also acknowledges the Veteran’s contention that his GERD results in chest pain and painful bloating. As such, the Veteran’s GERD more closely approximates the criteria for a 30 percent rating as of December 6, 2017. However, the evidence does not demonstrate pain, vomiting, material weight loss, hematemesis or melena, anemia, or any other symptoms indicating severe impairment of health; therefore, a rating higher than 30 percent is not warranted. Final Considerations The Board considered whether the Veteran's service-connected GERD presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321 (b)(1) (2017). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). The Board compared carefully the level of severity and symptomatology of the Veteran's service-connected GERD with the established criteria found in the rating schedule. The Board finds that the symptoms associated with the service-connected GRED addressed in this decision are fully addressed by the rating criteria under which such disability is rated. Indeed, the ratings currently assigned for the disability contemplate the overall functional loss from the symptomatology attributable to the Veteran's GERD, to include persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, bloating, substernal/chest pain, and sleep disturbance and nausea, which are indicative of considerable impairment of health, as detailed above. Neither the Veteran nor his attorney has raised any other issues, nor have any other issues 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). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jane R. Lee