Citation Nr: 21001540 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 16-31 246 DATE: January 8, 2021 ORDER Entitlement to an initial evaluation in excess of 20 percent for gastroesophageal reflux disease (GERD) to include right hemicolectomy due to appendiceal carcinoma for the period from December 1, 2015 to April 18, 2016 is denied. Entitlement to an evaluation of 30 percent, but no higher, for GERD to include right hemicolectomy due to appendiceal carcinoma for the period from April 19, 2016 to July 14, 2020 is granted. Entitlement to an evaluation of 60 percent, but no higher, for GERD to include right hemicolectomy due to appendiceal carcinoma for the period beginning July 15, 2020 is granted. FINDINGS OF FACT 1. For the period from December 1, 2015 to April 18, 2016, the evidence of record does not show more than the Veteran’s symptom of pyrosis (heartburn) due to GERD. 2. For the period from April 19, 2016 to July 14, 2020, the Veteran’s GERD-related symptoms included persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal pain, nausea, vomiting, frequent episodes of diarrhea, 5 to 6 bowl movements per day, and sleep disturbance caused by reflux. 3. For the period beginning July 15, 2020, the Veteran has been having symptoms of pain in the chest which radiates down to his fingers and resulting in numbness in his hands, nausea, vomiting including vomits with blood, bad stomach bloating, gas with extremely foul smell, constant diarrhea, regurgitation, severe flare-ups during which he loses about 7 to 8 pounds, blood in stool, constant heartburn, and significant sense of urgency for bowel movements which result in occasional accidents. Resolving reasonable doubt in the Veteran’s favor, the combination of these symptoms produces severe impairment of health. CONCLUSIONS OF LAW 1. For the period from December 1, 2015 to April 18, 2016, the criteria for an initial evaluation in excess of 20 percent for GERD to include right hemicolectomy due to appendiceal carcinoma have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346 (2019). 2. For the period from April 19, 2016 to July 14, 2020, the criteria for an evaluation of 30 percent, but no higher, for GERD to include right hemicolectomy due to appendiceal carcinoma have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346 (2019). 3. Resolving reasonable doubt in the Veteran’s favor, for the period beginning July 15, 2020, the criteria for an evaluation of 60 percent, but no higher, for GERD to include right hemicolectomy due to appendiceal carcinoma have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1995 to November 2015. This case is before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. Now the matter is before the Board. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27 (2019). VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2019). Otherwise, it will assign the lower rating. Id. The Board notes that the Veteran’s GERD, to include right hemicolectomy due to appendiceal carcinoma, is currently rated under Diagnostic Code 7329 (large resection of the large intestine). However, the Veteran’s representative contends that Diagnostic Code 7346 (hernia hiatal) is more appropriate to evaluate the Veteran’s current symptoms. The Board agrees with the Veteran’s representative since his symptoms and impairments are more analogous to the ones provided in Diagnostic Code 7436. Thus, the Veteran’s GERD will now be evaluated under Diagnostic Code 7346. Under Diagnostic Code 7346, in pertinent part, a 30 percent evaluation 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; and a maximum 60 percent evaluation 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. 38 C.F.R. § 4.114, Diagnostic Code 7346 (2019). On July 2015 VA examination, the examiner noted the Veteran’s diagnosis of GERD. The Veteran reported current symptom of pyrosis (heartburn) and no other complaints. He was not taking any medication for GERD at the time. The examiner indicated that the Veteran’s GERD condition does not impact his ability to work. However, in an April 2016 Intestinal Conditions Disability Benefits Questionnaire (DBQ), the Veteran’s private physician P.G. noted his worsened symptoms. For example, the report indicates that the Veteran had nausea and vomiting with severe heartburn and substernal pain. See April 19, 2016 Intestinal Conditions DBQ. Also, the Veteran’s frequent episodes of diarrhea, abdominal pain, and 5 to 6 bowl movements per day were noted. As the evidence does not show more than the Veteran’s symptom of pyrosis (heartburn) due to GERD prior to April 19, 2016 Intestinal Conditions DBQ, the Board finds that an initial evaluation in excess of 20 percent for GERD to include right hemicolectomy due to appendiceal carcinoma for the period from December 1, 2015 to April 18, 2016 is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346 (2019). On August 2016 VA examination, the Veteran stated that most of his symptoms seems to be the worst at night including nausea, heartburn, bad taste in mouth, and chest pain. He reported that he has been to the hospital on multiple occasions due to the chest pain while thinking it was a heart attack. He also provided that his symptoms have worsened with vomiting, chest pain, throat pain, and burning sensation, and those symptoms wake him up at night. The examiner noted the Veteran’s current symptoms of persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal pain, and sleep disturbance caused by reflux for 4 or more times per year with a duration of 10 days or more. Also, the examiner indicated that the Veteran had recurrent nausea and recurrent vomiting for 4 times or more per year with an averaging duration of less than 1 day. The examiner provided that the Veteran has symptoms of stomach cramping, frequent bowel movements, and prolonged time to have the bowel movement, but these are unrelated to GERD. On April 2017 VA examination, the examiner noted the Veteran’s symptoms of pyrosis, reflux, regurgitation, and substernal pain. The Veteran testified on his worsened symptoms related to GERD during the hearing held on July 15, 2020, as discussed below. Based on above, the finds that the evidence shows that, for the period from April 19, 2016 to July 14, 2020, the Veteran’s GERD-related symptoms included persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal pain, nausea, vomiting, frequent episodes of diarrhea, 5 to 6 bowl movements per day, and sleep disturbance caused by reflux. As such, the Board finds that the symptoms that the Veteran experienced during that period more approximates a 30 percent evaluation. However, the next higher evaluation of 60 percent for that period is not warranted as the evidence does not show symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Consequently, the Board finds that an evaluation of 30 percent, but no higher, for GERD to include right hemicolectomy due to appendiceal carcinoma for the period from April 19, 2016 to July 14, 2020 is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346 (2019). However, the Board notes that the worsening of the Veteran’s GERD-related symptoms were shown during the hearing held on July 15, 2020. During the July 2020 hearing, the Veteran testified that he has flare-ups about twice a month which last from four days up to two weeks, and he cannot continue with his normal activities during the flare-ups because he is bound to a toilet. He stated that he has almost constant abdominal pain, but it is more severe during the flare-ups, and experiences multiple vomiting during the flare-ups including having vomits with blood. He provided that he gets nausea, cold sweats, and feels like he is going to pass out during bowel movements during a flare-up, and he has to lay down after a bowel movement to recover from it. He testified that he has regurgitation and loses about 7 to 8 pounds during a flare-up and gain back the weight during the two weeks or so until the next flareup. He stated that he has blood in stool and constant heartburn from which he wakes up in the middle of the night. He provided that he has pain in the chest which radiates down to his fingers and resulting in numbness in his hands, bad stomach bloating, gas with extremely foul smell, and constant diarrhea. He also shared that he had accidents in the car due to significant sense of urgency for bowel movements, and carries around change of clothes and wipes. He testified that he has to take a lot of leave from work due to flare-ups and doctor’s appointments, and has to be excused from work meetings due to sudden bowel movements. The Board has considered whether the Veteran’s testimony of a worsening warrants a new VA examination. However, the Veteran is competent to provide testimony as to the frequency and severity of the aforementioned symptoms relevant to the rating criteria, which are observable to a lay person. Under these circumstances, the Board finds that a new examination is not necessary and would only needlessly delay adjudication of the claim. Based on the Veteran’s competent and credible July 2020 testimony regarding his worsened symptoms of GERD, the Board resolves reasonable doubt in the Veteran’s favor and finds that the combination of those symptoms produces severe impairment of health. Consequently, the Board finds that an evaluation of 60 percent, but no higher, for GERD to include right hemicolectomy due to appendiceal carcinoma for the period beginning July 15, 2020 is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346 (2019). As the 60 percent evaluation is the maximum rating available under   the Diagnostic Code, there is no higher rating to be considered for the disability. 38 C.F.R. § 4.114, Diagnostic Code 7346 (2019). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, 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.