Citation Nr: 21001146 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-19 030 DATE: January 7, 2021 ORDER Entitlement to a disability rating of 60 percent, for the entire period on appeal for service-connected gastritis, now rated as gastritis and gastroesophageal reflux disease (GERD), is granted. FINDING OF FACT For the entire period on appeal, the Veteran’s gastritis and GERD manifested as symptoms of pain, vomiting, and other symptom combinations (dysphagia, pyrosis, reflux, regurgitation, sleep disturbance, hematemesis, and nausea) productive of severe impairment of health. CONCLUSION OF LAW For the entire period on appeal, the criteria for a disability rating of 60 percent for gastritis and GERD symptomology have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, Diagnostic Code 7307-7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from April 1959 to April 1965. This appeal was last before the Board in April 2019 when it was remanded for a VA examination to determine the severity of the Veteran’s gastritis symptomology. The Veteran has been afforded a VA examination; thus, the remand directives have been complied with. Stegall v. West, 11 Vet. App. 268 (1998). Of note, in a September 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for right wrist arthritis. As such, this issue is no longer before the Board. The Veteran and his spouse testified before the undersigned Veteran’s Law Judge (VLJ) in an April 2019 Videoconference Hearing. A transcript of that proceeding has been prepared and is associated with the file. The Board observes that the Veteran’s representative argues that the Veteran’s GERD should be rated as 80 percent disabling for esophageal stricture. However, the Veteran’s esophageal stricture was granted service connection, and awarded a 50 percent disability rating, in a September 2020 rating decision, which is not on appeal before the Board. The Veteran’s gastritis, now rated with GERD symptoms, remains the issue on appeal, and as discussed below, is awarded a 60 percent disability rating. Entitlement to a disability rating of 60 percent, for the entire period on appeal for service-connected gastritis, now rated as gastritis and gastroesophageal reflux disease (GERD) When this appeal began, the Veteran’s gastritis was rated as noncompensable and he testified that it should have been rated higher. In the April 2019 Board decision, this issue was remanded to obtain a VA examination. Subsequently, the AOJ granted a 30 percent disability rating for the entire period on appeal in a September 2020 rating decision. The Board finds that the medical evidence of record shows that a 60 percent disability rating is warranted for the entire period on appeal. Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Evaluations shall be based as far as practicable, upon the average impairments of earning capacity with the additional requirement that the Secretary should from time to time readjust this schedule of ratings in accordance with experience. Where there is a question as to which of two disability evaluations should be applied, 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. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of, or overlapping with, the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 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 concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s gastritis was previously rated under Diagnostic Code (DC) 7307, Gastritis. It is now rated under DC 7307-7346 (Hernia hiatal). 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 and the additional code is shown after a hyphen. Under the DC 7307 if hypertrophic gastritis is chronic with severe hemorrhages, or large ulcerated or eroded areas, the rating is 60 percent. If it is chronic with multiple small eroded or ulcerated areas, and symptoms, the rating is 30 percent. Chronic gastritis with small nodular lesions and symptoms warrants a 10 percent rating. If it is atrophic gastritis (a complication of a number of diseases, including pernicious anemia) it is to be rated on the underlying condition. 38 C.F.R. § 4.114, DC 7307. 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 is required for a 30 percent rating. A 30 percent rating requires persistently recurrent epigastric distress with dysphagia, pyrosis, dysphonia, 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. The Board notes that GERD is most closely analogous to a hiatal hernia in terms of symptomatology and resulting disability picture, thus, GERD is rated under DC 7346. 38 C.F.R. § 4.114. In this case, the Board must determine which diagnostic code affords the Veteran the highest rating. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation.” In September 2020, the Veteran attended a VA Esophageal Conditions examination. The examiner diagnosed the Veteran with gastroesophageal reflux disease (GERD) and stricture of esophagus. In reporting the medical history, the examiner noted that the Veteran had hematemesis due to the medications prescribed to treat his gunshot wounds when he was originally diagnosed with ulcers. The examiner reported that the Veteran’s GERD symptoms were “productive of considerable impairment of health” and noted the symptoms as: dysphagia; pyrosis; reflux; regurgitation; substernal pain; sleep disturbances, described as recurring 4 or more times a year with an average duration of episodes of symptoms as 10 days or more; nausea; and vomiting. In November 2019, the Veteran attended a Stomach and Duodenal Conditions examination. The Veteran was diagnosed with gastric polyps, esophageal stricture, hiatal hernia, and gastritis. The examiner reported the following signs and symptoms: abdominal pain; nausea; vomiting; and hematemesis, described as periodic; and one incapacitating episode a year, lasting 1-9 days. The examiner concluded that there was a progression of service-connected gastritis to gastric polyps, esophageal stricture, and hiatal hernia. The Veteran testified that his gastritis and GERD symptoms caused him pain and a burning sensation, caused him to choke on his food, and related, “It wasn’t too long ago that I bled out,” and had to have infusions of iron. The Board notes that the VA examiners’ conclusions are based on a review of the Veteran’s file, his relevant medical history, and a physical examination of the Veteran. The Board finds these reports and conclusions to be highly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In addition, the Board finds the Veteran’s testimony to be competent and credible and therefore, probative. Based on the probative evidence outlined above, the Board finds that the Veteran’s gastritis and GERD symptomology most closely approximates the 60 percent disability rating under DC 7346, Hiatal hernia. Since the medical evidence does not show severe hemorrhages, or large ulcerated or eroded areas necessary for the rating of 60 percent under DC 7307, Gastritis, but does show symptoms of pain, vomiting, hematemesis, and other symptom combinations productive of severe impairment of health necessary for the rating of 60 percent under DC 7346, rating the Veteran’s symptoms under DC 7346 affords the Veteran the highest rating allowed. The Board observes that under either diagnostic code, the maximum rating is 60 percent. Accordingly, the Board finds that for the entire period on appeal, the Veteran’s gastritis and GERD symptomology warrants a 60 percent disability rating under DC 7346. Finally, the Board notes that the Veteran has not indicated, by testimony or in writing, that he is unable to work due to his gastritis and GERD. Although TDIU may be raised as part and parcel to an increased rating claim under Rice v Shinseki, 22 Vet. App. 447 (2009), the Board finds that the evidence of record does not show that entitlement to TDIU is raised in this case. In making this determination, the Board has considered the comment in the September 2020 Esophageal Conditions VA examination wherein the examiner noted under functional impact that, “Diagnosed condition interferes with the ability to work continuously without a regular meal intake. The Veteran requires periodic time off to undergo endoscopic esophageal dilation.” It appears that the examiner was referring to the Veteran’s diagnosed stricture of the esophagus and not the gastritis and GERD currently on appeal. Either way, the Board finds that this comment alone does not give rise to the application of Rice and moreover the evidence of record reflects that the Veteran retired from Birmingham Water Works. Accordingly, TDIU is not raised in this case. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Nelson 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.