Citation Nr: 18140707 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 18-23 082 DATE: October 5, 2018 ORDER Entitlement to a rating in excess of 10 percent for gastroesophageal reflux disease (GERD) and hiatal hernia, is denied.   FINDING OF FACT Throughout the appeal period, the Veteran’s GERD and hiatal hernia has been manifested by persistently recurrent epigastric distress with dysphagia and pyrosis, but not regurgitation productive of a considerable impairment of health. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for GERD and hiatal hernia are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code (DC) 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1998 to February 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a rating in excess of 10 percent for GERD and hiatal hernia. 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. By way of background, an October 2005 rating decision awarded service connection for GERD and hiatal hernia and assigned an initial 10 percent rating, effective June 14, 2005. The current appeal period before the Board begins on July 13, 2016, the date VA received the Veteran’s claim for an increased rating, plus the one-year “look back” period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Pursuant to DC 7346, a 10 percent disability rating is warranted for a hiatal hernia with two or more of the symptoms required for a 30 percent rating, which are of lesser severity than is required for a 30 percent rating. 38 C.F.R. § 4.114, DC 7346. A 30 percent 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. A maximum 60 percent rating is assigned 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. Upon review of the totality of the record, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran’s GERD and hiatal hernia at any point during the appeal period. In a November 2015 VA treatment record, the Veteran reported exacerbated gastric reflux and vomiting several times the day prior and, and twice today. The treating physician noted that such symptoms were associated with constipation and physical examination was negative. The physician advised the Veteran to continue the same medical treatment and irritant free diet. At the October 2016 VA examination, the Veteran reported epigastric burning sensations and reflux, which he controlled by taking Pantoprazole daily and Zantac nightly. He endorsed symptoms of reflux, sleep disturbance caused by reflux occurring four or more times per year and lasting less than one day, as well as nausea occurring four or more times per year and lasting less than one day. Upon examination, there was no evidence of esophageal stricture, esophageal spasm, or acquired diverticulum of the esophagus. The examiner stated that the Veteran’s gastrointestinal disorder did not have an impact on his ability to work. A May 2018 private medical data review indicates symptoms of nausea, vomiting, and burning epigastric pain. There are no other pertinent findings during the period on appeal. The evidence reflects that the severity of the symptoms and disability picture does not warrant a rating in excess of 10 percent for GERD and hiatal hernia. In this regard, the Veteran’s reported symptoms are described as resembling that of persistently recurrent epigastric distress with pyrosis and regurgitation, but not dysphagia. There is no indication of dysphagia, which is required for a 30 percent disability rating. See 38 C.F.R. § 4.114, DC 7346; Johnson v. Wilkie, No. 16-3808, 2018 U.S. App. Vet. Claims LEXIS 1253, at *12-13 (Vet. App. Sep. 19, 2018) (addressing successive and conjunctive rating criteria). Moreover, even without consideration of the ameliorative effects of medication, the above-cited evidence does not reflect that the Veteran’s GERD and hiatal hernia has produced considerable impairment of health. Therefore, a higher 30 percent rating is not warranted. The Board has considered whether a higher rating is warranted under alternate diagnostic codes relating to disabilities of the digestive system. However, the other DCs that provide for a higher, 30 percent rating contemplate disabilities and symptomatology not demonstrated in the competent evidence of record. For instance, under DC 7307, pertaining to gastritis, there is no indication of chronic disease with multiple small eroded or ulcerated areas, and symptoms. He underwent an upper GI tract endoscopy in January 2014, which showed mild non erosive gastritis. Thus, a higher rating is not warranted. Also, to reiterate, DCs 7301-7329, 7331, 7342, and 7345-7348 cannot be combined. See 38 C.F.R. § 4.114. The November 2015 treatment record indicated constipation and the October 2016 VA examination indicated a sleep disturbance caused by esophageal reflux. These symptoms are not expressly contemplated by the rating schedule. However, they are reasonably encompassed at the 30 percent disability level, which considers “[p]ersistently recurrent epigastric distress,” such as the reflux “productive of considerable impairment of health,” which comprehends constipation and the sleep disturbance. See, e.g., Spellers v. Wilkie, No. 16-4053, 2018 U.S. App. Vet. Claims LEXIS 1201, at *13 (Vet. App. Sep. 7, 2018) (the lack of objective criteria in a diagnostic code for differentiating between the specified severity levels means that any evidence indicating severity of the disability is necessarily relevant to the schedular rating level). Thus, referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321. (Continued on the next page)   In sum, the evidence is not in equipoise in showing a disability level higher than the current 10 percent. As such, the benefit-of-the doubt doctrine is not applicable, and the appeal is denied. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.S. Mahoney, Associate Counsel