Citation Nr: 18158047 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 17-00 902 DATE: December 14, 2018 ORDER Entitlement to an initial 30 percent rating, but not higher, for gastroesophageal reflux disease (GERD) is granted. FINDING OF FACT For the entire period under consideration, the Veteran’s GERD is manifested by symptoms productive of considerable impairment of health, including persistently recurrent epigastric distress, substernal pain, and sleep disturbance caused by esophageal reflux that is relieved with the use of medication (Nexium). CONCLUSION OF LAW The criteria for an initial 30 percent rating for GERD, but not higher, are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 2007 to December 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. Entitlement to an initial compensable rating for GERD Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two ratings shall be applied, the higher rating is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When, after careful consideration of the evidence, a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran’s GERD is currently rated 0 percent pursuant to Diagnostic Codes 7399-7346. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the specific basis for the rating assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. In this case, GERD is not among the listed disorder 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. In this case, the service-connected GERD is rated by analogy to a hiatal hernia under Diagnostic Code 7346. 38 C.F.R. § 4.114. Disability ratings assigned under Diagnostic Codes 7301 to 7329 (inclusive), 7331, 7342, and 7345 to 7348 (inclusive) will not be combined with each other. Instead, a single disability rating will be assigned under the Diagnostic Code which reflects the Veteran’s predominant disability picture with elevation to the next higher rating where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. Under Diagnostic Code 7346, a 10 percent 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 required for a 30 percent rating. 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. 38 C.F.R. § 4.114. The Veteran contends that he is entitled to a higher rating for service-connected GERD because the current rating does not compensate the severity of his symptoms absent medication. In a January 2014 VA examination, as a result of continuously taking medication for GERD, the Veteran was found to have no signs or symptoms of esophageal conditions. That examination did not consider how the Veteran’s GERD impacted the Veteran’s life absent proper medication. In the April 2015 notice of disagreement, the Veteran’s representative claimed that the Veteran was experiencing epigastric distress, regurgitation, pyrosis, and nausea as a result of GERD. The Veteran also claimed that if he took Nexium, he did not have such severe symptoms. However, if the Veteran forgot, or did not, take the Nexium, the symptoms returned within 24 hours. In a September 2015 VA examination, the Veteran’s GERD was found to result in symptoms productive of considerable impairment of health, including persistent recurrent epigastric distress, substernal pain, and sleep disturbances caused by esophageal reflux four or more times a year, lasting less than a day. However, the Veteran’s symptoms were controlled as long as he continued to take Nexium. The examiner also stated that the Veteran’s GERD did not affect his ability to work. In a September 2015 addendum, the examiner stated that if the Veteran didn’t take Nexium, GERD would be productive of considerable impairment of health due to persistently recurrent epigastric distress, substernal pain, and sleep disturbance caused by esophageal reflux. In the most recent primary care physician visit of record, dated in March 2018, the Veteran denied abdominal pain, bowel issues, nausea, vomiting, and heartburn. The Veteran’s GERD was noted to be stable as long as he used Nexium. Pertinently, although the record demonstrates that medication is generally effective in managing the Veteran’s symptoms, the Board acknowledges that where the effects of medication are not specifically contemplated by the rating criteria, a higher rating may not be denied simply because symptoms are relieved by medication. Jones v. Shinseki, 26 Vet. App. 56 (2012). Therefore, the Board finds that if the Veteran did not take Nexium to manage his GERD, he would have persistent, recurrent epigastric distress, substernal pain, and sleep disturbances caused by esophageal reflux four or more times a year. As noted above, a 30 percent rating is warranted under Diagnostic Code 7346 for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Thus, the Board finds that the Veteran is entitled to a 30 percent rating for his GERD. The Board has specifically relied on the September 2015 examination findings of considerable impairment of health due to the symptoms and the credible statements of the Veteran and findings as to the symptoms when Nexium is not used. Although a higher rating of 30 percent is warranted, the Board finds that the preponderance of the evidence is against an even higher 60 percent rating. The medical records do not show complaints of vomiting, unintended material weight loss, hematemesis, melena, or any anemia. Additionally, VA examiners have consistently found that the Veteran’s GERD caused no impact on the Veteran’s ability to work. Thus, there is no indication that, in the absence of medication, even more severe impairment warranting a 60 percent rating would be present. Although examples, most of the symptoms set forth in the 60 percent rating have not been shown. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran’s claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the evidence supports a higher rating of 30 percent, but no higher, for GERD during the appeal period. Thus, the claim is granted. However, the preponderance of the evidence is against the assignment of any higher rating, and the claim for any rating higher than 30 percent must be denied. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mondesir, Law Clerk