Citation Nr: 19176406 Decision Date: 10/02/19 Archive Date: 10/02/19 DOCKET NO. 18-30 129 DATE: October 2, 2019 ORDER An initial rating of 30 percent, prior to July 9, 2019, and 60 percent thereafter, for gastroesophageal reflux disease (GERD) is granted. FINDING OF FACT 1. Prior to July 9, 2019, the weight of the competent and probative evidence is at least in equipoise as to whether the Veteran’s GERD resulted in persistent recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, and productive considerable impairment of health. 2. Since July 9, 2019, the weight of the competent and probative evidence is at least in equipoise as to whether the Veteran’s GERD results in pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. CONCLUSION OF LAW The criteria for entitlement to an initial rating of 30 percent, prior to July 9, 2019, and 60 percent thereafter, for GERD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.114, Diagnostic Code (DC) 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1975 to April 1976. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in June 2019, on which occasion the issue of an increased rating for GERD was remanded for further development. Inasmuch as there has been substantial compliance with the June 2019 Board Remand’s directives, with the necessary examination that is adequate for the reasons discussed below and updated medical records having been associated with the claims file, there is no need for additional remands to ensure compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In July 2019, after the supplemental statement of the case was generated, the Veteran submitted additional records in support of his appeal for an increased rating for GERD. The Board notes that 38 U.S.C. § 7105(e)(1) provides for an automatic waiver of initial agency of original jurisdiction (AOJ) review of evidence submitted by a Veteran or his or her representative where a substantive appeal is filed on or after February 2, 2013 (here, the VA Form 9 was received in June 2018), unless the claimant or the claimant’s representative request in writing that the AOJ initially review such evidence. The Veteran or representative did not request AOJ consideration in writing, therefore, such evidence will be considered by the Board. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Id. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the disorder. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007); 38 C.F.R. § 3.159(a). The Veteran contends that he is entitled to an initial rating in excess of 10 percent for GERD, evaluated under Diagnostic Codes 7399-7346. Under Diagnostic Code 7346, the maximum 60 percent rating is assigned where the evidence demonstrates pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia; or other symptom combinations productive of serious impairment of health. Persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, warrants a 30 percent rating. A 10 percent rating is assigned for two or more of the symptoms listed in the 30 percent criteria of less severity. 38 C.F.R. § 4.114, DC 7346. After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that an initial rating of 30 percent, prior to July 9, 2019, and 60 percent thereafter, for GERD is warranted. August 2016 and September 2018 VA examinations reflect the Veteran’s GERD results in persistent recurrent epigastric distress; daily to almost daily reflux; pyrosis; regurgitation; substernal pain; and sleep disturbance caused by esophageal reflux that occurs more than four times per year with episodes lasting less than one day. The Veteran’s treatment plan includes taking continuous medication. The Veteran’s GERD was not found to impact the Veteran’s ability to work. VA examinations dated August 2016 and September 2018. A July 2019 VA examination reflects diagnoses of GERD and candida esophagitis. The Veteran’s GERD results in persistent recurrent epigastric distress; severe heartburn; vomiting; reflux; regurgitation; substernal pain; nausea; and sleep disturbance caused by esophageal reflux that occurs more than four times per year with episodes lasting one to nine days. The Veteran takes continuous medication for treatment of GERD. The Veteran reported having long history of reflux (since 1976), severe heartburn with vomiting and an inability to sleep more than three to four hours per night because of reflux and fear of vomiting through his nose. The examiner noted that GERD does impact the Veteran’s ability to work due to chronic nausea and vomiting in the morning which affects the Veteran’s sleep and causes some daytime fatigue as a residual. The examiner further noted the Veteran’s GERD does not cause physical activity limitation. July 2019, VA Examination. The Board finds the VA examinations to be competent, credible, and highly probative, as it is supported by an in-person examination, review of the relevant medical history and claim’s file, report accurate history, a description of the nature and severity of the Veteran’s symptoms, proper consideration of lay evidence, provides clear clinical findings supported by data; and substantially complied with the June 2019 Board Remand directives. See Nieves-Rodriguez, 22 Vet. App. 295; Stegall v. West, 11 Vet. App. 268 (1998). The Board acknowledges that the June 2019 Board Remand found the September 2018 VA examination did not specifically indicate the Veteran’s GERD symptoms; however, upon further review, the Board finds the symptoms listed in the August 2016 and September 2018 examinations were the Veteran’s GERD symptoms. In light of the above, the Board finds that prior to July 9, 2019, an initial rating of 30 percent for GERD is warranted as the weight of the competent and probative evidence is at least in equipoise that the Veteran’s GERD symptoms resulted in persistent recurrent epigastric distress with pyrosis and regurgitation, accompanied by substernal pain, productive of considerable impairment of health. Prior to July 9, 2019, the Veteran experienced the following GERD symptoms, despite taking continuous medication: persistent recurrent epigastric distress; daily to almost daily reflux; pyrosis; regurgitation; pain in substernal; and sleep disturbance caused by esophageal reflux that occurs more than four times per year with episodes lasting less than one day. VA examinations dated August 2016 and September 2018. Although the Veteran had these symptoms, VA examiners found they did not impact his ability to work. Id. The Board, therefore, assigns an initial rating of 30 percent, but no higher, prior to July 9, 2019, as the Veteran’s GERD symptoms more nearly approximated considerable health impairment, rather than severe health impairment. See 38 C.F.R. § 4.114, DC 7346. As of July 9, 2019, however, the Board finds that an increased rating of 60 percent for GERD is warranted. Evidence supportive of this determination includes the Veteran’s increased sleep disturbance caused by esophageal reflux with episodes lasting between one and nine days; severe heartburn; chronic nausea; and vomiting. Regarding the Veteran’s sleep disturbance, the Veteran reported only being able to sleep three to four hours per night due to reflux and the fear of vomiting through his nose. A VA examiner found the Veteran’s GERD affected his ability to work because chronic nausea and vomiting in the morning affects his sleep and results in daytime fatigue. See July 2019, VA examination. In considering the combination of GERD symptoms, to include persistent recurrent epigastric distress, severe heartburn, reflux, regurgitation, substernal pain, sleep disturbance, daily nausea, daily vomiting, and a 43-year history of reflux, the Board finds that as of July 9, 2019, the Veteran’s GERD produced severe impairment of health. The Board, accordingly, finds a rating of 60 percent as of July 9, 2019, is warranted. A rating higher than 60 percent is not warranted as 60 percent is the maximum rating provided under DC 7346. See 38 C.F.R. § 4.114, DC 7346. All possibly applicable diagnostic codes have been considered in compliance with Schafrath, 1 Vet. App. at 593, but the Veteran could not receive higher and/or additional evaluations for GERD based on the evidence. See 38 C.F.R. § 4.114. The Board notes that the benefit of the doubt has been applied, where applicable. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Straughn, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.