Citation Nr: 20021096 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 16-03 854A DATE: March 24, 2020 ORDER Entitlement to a rating of 30 percent, but no higher, for gastroesophageal reflux disease (GERD), is granted. FINDING OF FACT During the entire appeal period, the Veteran's service-connected GERD has been manifested primarily by persistently recurrent epigastric distress with dysphagia, pyrosis, regurgitation, sleep disturbance and nausea, accompanied by substernal arm/shoulder pain, productive of considerable impairment of health. Vomiting, material weight loss and hematemesis, or melena with moderate anemia or other symptom combinations productive of severe impairment of health have not been demonstrated. CONCLUSION OF LAW The criteria for a 30 percent rating for GERD, but no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.114, Diagnostic Code (DC) 7399-7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 2000 to January 2001, from October 2001 to August 2002, from February 2003 to February 2004, and from January 2005 to January 2006. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified at video conference Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the Veteran's claims file. The Board remanded the issue on appeal for additional development in December 2018. The requested examination has been provided. Therefore, the directives have been substantially complied with and the matter is again properly before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to a rating in excess of 10 percent for GERD. In January 2014, the Veteran submitted a claim for an increased rating for his service-connected GERD stating that he has shoulder pain that is an impairment to his health. The Veteran’s GERD is currently rated as 10 percent disabling under DC 7399-7346. 38 C.F.R. § 4.114. Under DC 7346, a 60 percent disability rating is warranted for a hiatal hernia with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. A 30 percent disability 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 10 percent disability rating is warranted with two or more of the symptoms for the 30 percent evaluation, though of less severity. An earlier October 2013 VA examination report reflects that the Veteran had heartburn, almost constantly that was aggravated by recumbency. He was given a clinical diagnosis of GERD and started on a proton pump inhibitor, now taking Prilosec. Even with Prilosec, he gets breakthrough pyrosis 3 to 4 times weekly., even with taking Prilosec. His GERD symptoms included persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, sleep disturbance caused by esophageal reflux that occurs 4 or more times per year, with an average duration of symptoms of 10 days or more. The Veteran also had recurring nausea, with episodes 4 or more times per year, with an average duration of nausea of 10 days or more. He did not have esophageal stricture, spasm of esophagus, or an acquired diverticulum of the esophagus. His GERD does not impact his ability to work. A December 2013 VA medical record reflects that the Veteran was informed that his biopsy of the GE junction showed results of esophagitis, inflammation of the esophagus. The biopsy report itself also noted chronic inflammation. In a July 2014 statement in support of claim, the Veteran asserted that although he takes prescription medication daily, his GERD has been persistent as it has caused regular inconvenience and pain. He experiences pain in his chest, which shoots across his left arm/shoulder. An August 2014 esophageal condition VA examination report reflects that the Veteran complained of substernal burning, a sensation of a lump in his throat, and reflux/water brash with pain radiating to his left shoulder and upper back. He usually takes an extra Omeprazole, which only partially relieves his symptoms. The Veteran noted symptoms with any type of food. He avoids fatty, spicy foods, but still noted heartburn, reflux, and pain. The examiner reported that the Veteran takes continuous medication for GERD, Omeprazole. His symptoms included persistently recurrent epigastric distress, pyrosis, reflux, and substernal shoulder pain. He did not have esophageal stricture, spasm of esophagus, or an acquired diverticulum of the esophagus. The examiner referenced the findings from the December 2013 biopsy. The Veteran’s GERD did not impact his ability to work. A January 2015 VA treatment record noted that the Veteran’s refractory GERD was uncontrolled. A December 2015 Decision Review Officer (DRO) informal conference report reflects that the Veteran was going to undergo surgery for his GERD because it had gotten so bad. The Veteran had been going to the VA frequently for GERD and his medications have been upped numerous times without any relief. A new examination was requested. In a January 2016 VA examination report, it was noted that the Veteran had tried PPI and H2 blockers, but was still with symptoms. He had no loss in weight, no melena, and no hematemesis. The Veteran’s symptoms most of the time occur after food, but even without. The Veteran stated that sometimes leaning forward can exacerbate symptoms. He take continuous medication for GERD, Omeprasole, 40 mg. His GERD symptoms included pyrosis, reflux, regurgitation, and substernal pain the shoulder. He also had sleep disturbance caused by esophageal reflux with frequency of symptom recurrence four times or more per year, with average duration of less than one day. The VA examiner stated that the Veteran’s GERD does not impact his ability to work. In November 2018, the Veteran testified at a Board hearing. He stated that he has heartburn on a daily basis, some days more severe than others. The Veteran stated that the only time he does not have symptoms is when he does not eat at all. He has been on Omeprazole since 2005 and it helps a bit. The Veteran stated that he gets a lot of indigestion, especially after eating, to the point where he has to control his breathing. The Veteran stated that, if not, it feels as though he is going to kind of regurgitate some food. He has had food come back up. When the Veteran has had more serious bouts of it, it feels like there is a piece of charcoal in his throat, like a lump of something stuck and it is just really the discomfort that that is associated with it. He also has pain in his chest. He gets heartburn that varies in degree, when its severe he has to close his eyes and breath to get through it. He also has had substernal arm pain numerous times. He relies on the medication, it helps, but it does not get rid of all the symptoms. Some days it doesn’t seem to have the same effect that it does on other days. A February 2019 VA esophageal conditions examination report reflects that to control his GERD symptoms the Veteran now takes 80mg of daily, and “it helps for a good bit of it.” However, he does not have complete resolution of his symptoms. He still keeps getting mild heartburn and indigestion with more frequent heartburn and belching. The Veteran stated that he has always had some breakthrough heart burn episodes in the last eight months or so after he eats a lot or a little the food will come back up. He can feel the pressure building and sometimes he belches, and it is just air and other times it feels like food coming up. Also, when he bends over, he inhales to keep food from coming up his throat. The examiner reported symptoms of dysphagia, pyrosis, reflux, regurgitation, and substernal shoulder pain. The examiner commented that the Veteran reported dysphagia about once a week when it “really breaks though.” Also, that the Veteran gets most symptoms two to three times a day, lasting a few minutes to 20 to 30 minutes. His GERD does not impact his ability to work. A May 2019 VA treatment record notes that the Veteran’s GERD is stable on Omeprazole. A November 2019 VA treatment record reflects that the Veteran complained that his acid reflux symptoms were worsening. A GI follow up was recommended, to continue Omeprazole for now. A January 2020 VA GI consultation report reflects that the Veteran stated that Omeprasole helped, but he still has reflux symptoms on a daily basis. He denied dysphagia, nausea, vomiting, or change in bowel habits. His weight is stable. He has regurgitation during the day, even if he bends just slightly at the waits or often after eating without any change in position. The Veteran would like to meet with surgery again to discuss fundoplication. A January 2020 VA surgery consultation report reflects that the presented with a known history of acid reflux. He denied any nausea, vomiting, fevers, or chills. Discussed Robot Assisted Nissan Fundoplication. Preoperative preparations, to include EGD/CT scan. A February 2020 VA surgery note reflects that the Veteran is a suitable candidate for the surgery; however, the Veteran needs to wait until the fall to schedule the surgery due to work conflicts. From the foregoing, the Board concludes that the Veteran’s service-connected GERD worsened to a degree within the range contemplated by the next higher 30 percent disability rating during the entire appeal period. As noted above, a 30 percent rating is assigned when there is a hiatal hernia characterized by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, and productive of considerable impairment of health. 38 C.F.R. § 4.114, Diagnostic Code 7346. Here, the evidence of record during the entire appeal period objectively demonstrates recurrent epigastric distress, reflux, regurgitation, substernal arm/shoulder pain, sleep disturbances, and nausea that has been productive of considerable impairment of health. Accordingly, the Board granting a higher 30 percent rating for GERD. However, a 60 percent rating is not warranted because his symptoms were not productive of severe impairment of his general health. As noted above, his GERD did not impact his ability to work. The Veteran has never been found to have vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. While he has had substernal arm/shoulder pain, such is compensated in the 30 percent rating. While the Veteran indicated that his GERD has progressively worsened, the objective findings consistently fail to show that his disability meets the criteria for the next higher 60 percent rating. Further, the Board notes that the Veteran is planning to have surgery for his GERD in the fall, that is over five months away and an increase in rating can be requested contemporaneous to any surgery the Veteran undergoes in the fall. At present, the Veteran's reported symptoms have been considered, and they support a 30 percent disability rating during the entire period on appeal. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mahaffey, 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.