Citation Nr: 18152807 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-53 529 DATE: November 27, 2018 ORDER An initial 30 percent evaluation, but no higher, for gastroesophageal reflux disease (GERD) is granted. FINDING OF FACT Throughout the appeal period, the Veteran’s GERD is more closely approximate to persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health; his GERD is not shown to have vomiting, material weight loss, hematemesis, anemia, or melena, or to be productive of severe impairment of health. CONCLUSION OF LAW The criteria for an initial 30 percent evaluation, but no higher, for GERD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.114, Diagnostic Code (DC) 7399-7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1989 to September 1995. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, in a September 2016 rating decision, the Agency of Original Jurisdiction (AOJ) increased the evaluation for the Veteran’s GERD from noncompensable to 10 percent disability, effective January 23, 2015, which is the date service connection has been awarded. The Board has therefore recharacterized the issue on appeal as above in order to comport with this award of benefits. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Throughout the appeal period, the Veteran’s 10 percent evaluation for his GERD has been assigned under DC 7399-7346. Under DC 7346, a 10 percent evaluation is assigned with two or more of the symptoms for 30 percent evaluation of less severity. A 30 percent evaluation is assigned for symptoms of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent evaluation 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. See 38 C.F.R. § 4.114, DC 7346. After review of the relevant medical and lay evidence, the Board finds that the criteria for an initial rating in excess of 10 percent disabling for GERD have not been met. In April 2015, the Veteran was afforded a VA examination for GERD, during which he reported difficulty swallowing; swallowing was painful and occurred twice daily. He reported that it felt like food got stuck in his throat and had had to drink water. On examination, the Veteran was noted to have dysphagia that occurred less than once a day; he did not have any persistently recurrent or infrequent episodes of epigastric distress, pyrosis (heartburn), reflux, regurgitation, substernal arm or shoulder pain, sleep disturbance, anemia, weight loss, nausea, vomiting, hematemesis, or melena during the examination. The examiner diagnosed GERD and found that his GERD did not impact his ability to work. A second VA examination for GERD was afforded the Veteran in May 2015, at which time he reported occasionally taking Tums, although he did not take prescription medications. On examination, the Veteran was shown to have substernal pain, reflux, and sleep disturbance due to reflux symptoms; his sleep disturbance was noted to occur 4 times a year and lasted once a day. The examiner diagnosed GERD and found that it did not impact the Veteran’s ability to work. In his June 2015 notice of disagreement (NOD) the Veteran reported experiencing heartburn “very frequently,” which he treated with over-the-counter medications such as Tums, Pepcid, and Mylanta. He also reported that his food got lodged in his upper throat 3 to 4 times a week; he reported that he felt like he was choking while eating and that he had to slow his eating, very finely chew his food, and drink lots of fluids while eating. In his October 2016 substantive appeal, VA Form 9, the Veteran reiterated that his food got stuck while eating and he felt like he was choking. He also stated that he is unable to lay down flat at night without coughing and choking, which effected his sleep. He further reported feeling bloated and nauseous since surgery, and that he suffers daily heartburn. Based on the foregoing evidence, the Board finds that the Veteran’s GERD symptomatology more closely approximates to symptoms of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health throughout the appeal period. Such is commensurate to a 30 percent evaluation throughout the appeal period. The Board, however, finds that an evaluation in excess of 30 percent is not warranted throughout the appeal period as there is no evidence of vomiting, material weight loss, hematemesis, anemia, or melena. Nor does the evidence demonstrate that the Veteran’s GERD is productive of a severe impairment of health. Significantly, the Veteran has not asserted that he has a severe impairment of health during the appeal period, nor has he indicated that he had any of those above noted symptoms necessary for the assignment of a 60 percent evaluation in this case. Accordingly, the Board finds that a 30 percent evaluation, but no higher, for the Veteran’s GERD is warranted throughout the appeal period; the Veteran’s claim for increased evaluation is granted to that extent, although it is in denied in all other respects. See 38 C.F.R. §§ 4.7, 4.114, DC 7346. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. M. Williams, Associate Counsel