Citation Nr: 19123712 Decision Date: 03/29/19 Archive Date: 03/29/19 DOCKET NO. 17-43 219 DATE: March 29, 2019 ORDER An initial 30 percent rating for gastroesophageal reflux disease (GERD) is granted. FINDING OF FACT Since the grant of service connection, the Veteran’s GERD is manifested by persistently recurrent epigastric distress, nausea, pyrosis (heartburn), and regurgitation, accompanied by substernal pain, productive of considerable impairment of health. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, since the grant of service connection, the criteria for a 30 percent rating, and no higher, for GERD, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.20, 4.113, 4.114, Diagnostic Code (DC) 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training from January 1988 to May 1988 and on active duty from September 1990 to June 1991. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Veteran’s agent attempted to withdraw as the Veteran’s representative, but has not submitted a motion to withdraw representation or shown good cause in accordance with 38 C.F.R. § 20.608. Accordingly, the Board continues to recognize Mr. Loiacono as the Veteran’s representative in this appeal. Entitlement to an initial rating in excess of 10 percent for GERD. The Veteran seeks a higher rating service-connected GERD. Service connection was granted in a July 2016 rating decision and an initial 10 percent rating was assigned pursuant to 38 C.F.R. § 4.114, DC 7346, effective December 4, 2006. Disability ratings are determined by applying a schedule of reductions in earning capacity from specific injuries or a combination of injuries that is based upon the average impairment of earning capacities. 38 U.S.C. § 1155. Each disability must be viewed in relation to its entire history, with emphasis upon the limitations proportionate to the severity of the disabling condition. 38 C.F.R. § 4.1. When rating the Veteran’s service-connected disability, the entire medical history must be reviewed. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of the two disability evaluations is applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of “staged rating” is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings apply to both initial and increased rating claims. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Under DC 7346, a 10 rating is warranted if two or more of the symptoms for the 30 percent evaluation of less severity is shown. 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. A 60 percent rating is warranted 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. The Board may not deny entitlement to a higher rating due to relief provided by medication when those effects are not specifically contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012); see also 38 C.F.R. § 4.114, DC 7346 (containing no reference to the effects of medication). Historically, two VA treatment records dated in 2006 showing that the Veteran’s GERD manifested with heartburn symptoms and treated with medication such as Omeprazole and Protonix. There also were subjective symptoms of nausea, sour stomach with substernal burning from his stomach to his throat. Particularly, in December 2006, he reported continuous heartburn and an inability to eat very much. At the time, he reported losing 40 to 50 pounds without any improvement in reflux. He had GERD symptoms 3 to 4 times per week and slept in a recliner chair. These records did not show anemia. The Veteran underwent a Gulf War VA examination in October 2007, as he had verified service in Southwest Asia. The examiner noted that he was diagnosed with minimal esophagitis via upper endoscopy (EGD) in 1994. The examiner found that his symptoms were manifested by nausea and heartburn, but did not note the frequency of these symptoms. The examiner did note that he had severe feeding effects on daily living activities due to his GERD. At an August 2013 VA examination, the Veteran reported having heartburn first thing in the morning. His stomach burned every day, with pain, and had heartburn 3 times per week. He denied nausea, vomiting, and dysphagia (difficulty swallowing). The examiner noted that he was obese. The examiner noted that he was on Protonix and this medication worked the best of any medication he had ever taken. The Veteran reported nothing takes the stomach pain away. At his November 2015 hearing before a Veterans Law Judge regarding his claim for service connection, the Veteran testified experiencing symptoms daily. The Veteran underwent a VA examination in June 2016. At the examination, he reported that his GERD symptoms occur daily with heartburn and nausea. The examiner noted current use of Omeprazole, without improvement in symptoms after use of medication. The Veteran indicated he had to stop Protonix due to treatment for another condition; he hoped to return to Protonix soon as it worked much better. His current symptoms were persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal pain, and sleep disturbance due to acid reflux that rose up to the throat that awakens him at night. The examiner noted 4 or more episodes of nausea, vomiting, and sleep disturbance per year that lasts 1 to 9 days. The examiner reported a December 2013 EGD finding that showed erythema (redness) in the stomach compatible with gastritis. The examiner indicated there are no other pertinent physical findings, complications, signs or symptoms. The examiner indicated that the Veteran’s esophageal condition impairs his occupational functioning, as the Veteran reported his heartburn and nausea made it difficult to concentrate on any type of work. There are no other medical treatment records, including records submitted to the Social Security Administration in support of a disability claim, that pertained to GERD during the current appeal period. Given the above, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s GERD symptoms more nearly approximate a 30 percent rating since the grant of service connection. This is based on his symptoms, which primarily consist of recurrent epigastric distress, nausea, pyrosis, reflux, regurgitation, substernal pain, sleep impairment, and acid reflux. A 60 percent rating is not warranted at any time on appeal. The Board recognizes that the December 2006 VA treatment record reflected a subjective report of material weight loss; however, there were no other records after the December 2006 VA treatment record that actually demonstrated material weight loss as defined in the regulations. The June 2016 VA examiner noted recurrent episodes of vomiting, which is a symptom noted in the 60 percent rating criteria; however, the examination report did not show other serious impairments along with vomiting such as anemia, hematemesis or melena. In fact, there is no credible and competent evidence showing any hematemesis or melena with moderate anemia throughout the appeal -with or without use of medication. There are also no other reported symptom combinations productive of severe impairment of health. There are not reports of any hospitalization for GERD symptoms during the appeal and there is no competent and probative evidence to suggest that without the use of medication, the Veteran’s symptoms would be productive of severe impairment of health. Indeed, the Veteran reports that his medication has not changed the severity of his symptoms. In sum, a 30 percent rating, and no higher, is warranted for the service-connected GERD since the grant of service connection. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. There are no additional expressly or reasonably raised issues presented on the record. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Tang, Associate Counsel