Citation Nr: 21004815 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 12-11 238 DATE: January 28, 2021 ORDER Entitlement to an initial 30 percent rating, but no higher, for gastroesophageal disease (GERD) is granted. FINDING OF FACT The Veteran’s GERD caused recurrent epigastric distress with symptoms including nausea, heartburn, burning in stomach and throat, vomiting and regurgitation productive of considerable impairment of health. CONCLUSION OF LAW The criteria for an initial 30 percent disability rating, but not higher, for GERD have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § § 3.321, 4.1, 4.114, Diagnostic Codes 7203-7346 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1989 to April 2010. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In the 2010 rating decision, the RO denied the claim for service connection for an ulcer disorder, and the RO awarded service connection for GERD and assigned a noncompensable rating, effective from May 1, 2010. In a February 2015 rating decision, the initial assigned evaluation for GERD was increased to 10 percent disabling, effective from May 1, 2010. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in August 2013. A copy of the hearing transcript has been associated with the electronic record In October 2014, August 2016, and March 2018, the Board remanded the matters on appeal for additional development. In the March 2018 Board remand, the Board recharacterized an issue as entitlement to service connection for a gastrointestinal disorder, to include an ulcer disorder, esophagitis, and gastritis, to include as secondary to the service-connected GERD. In a November 2019 rating decision, the Agency or Original Jurisdiction (AOJ) granted service connection for esophagitis effective May 1, 2010, combined with the Veteran’s GERD, and continued the 10 percent evaluation. Therefore, that issue is no longer before the Board and the sole issue denied in a November 2019 Supplemental Statement of the Case is entitlement to an initial evaluation in excess of 10 percent for GERD. In March 2020, the Board again remanded the issue of entitlement to an initial rating in excess of 10 percent for GERD. Higher Initial Rating Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2020). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2020). The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2020). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2020). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2020). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his GERD disability. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence of record and are probative for resolving the matters on appeal. The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. The Veteran has a current initial 10 percent disability rating for GERD, effective May 1, 2010 under Diagnostic Codes 7203-7346. Hyphenated Diagnostic Codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27 (2020). Ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7358, inclusive may not be combined with each other. 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 so warrants. 38 C.F.R. § 4.114. Coexisting diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia, and disturbances in nutrition, do not lend themselves to distinct and separate disability evaluations without resulting in unlawful pyramiding. 38 C.F.R. § 4.113. Under Diagnostic Code 7346, a 10 percent evaluation is assigned when there is evidence of two or more of the symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114, Diagnostic Code 7346. A 30 percent evaluation is assigned when there is evidence of persistently recurrent epigastric distress with dysphasia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 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. Under Diagnostic Code 7203 for esophageal stricture, a 30 percent rating is assigned for moderate stricture, a 50 percent rating for severe stricture, permitting liquids only, and an 80 percent rating is assignable for permitting passage of liquids only, with marked impairment of general health. Factual Background and Analysis The Veteran underwent a VA examination in March 2010. The examiner noted that the Veteran denied constipation, diarrhea, abdominal pain, bloody stools or hemorrhoids. He had GERD since 2002 as he had heartburn which was worse when he was lying supine. He sought medical treatment and prescribed a proton pump inhibitor (PPI) which relieved his symptoms. An upper endoscopy revealed erosive esophagitis and some gastritis. There was no effect on his occupation. The diagnosis was GERD as well as erosive ulcerative gastritis that was resolved. The Veteran underwent a VA examination in January 2015. The examiner noted that the Veteran had a diagnosis of GERD as well as an esophageal ulcer/erosive esophagitis that had resolved. The examiner also noted that the Veteran’s symptoms were controlled on PPI. His symptoms included pyrosis, reflux and regurgitation. He did not have an esophageal stricture, spasm of the esophageus, or an acquired diverticulum of the esophagus. None of the Veteran’s esophageal conditions impacted his ability to work. The examiner noted that the Veteran had persistent GERD symptoms only if he did not take his prescribed PPI. As a result, the Veteran’s erosive esophagitis was resolved but his GERD was still present and controlled by medication. While the Veteran had previously been diagnosed with a duodenal ulcer and gastritis, he did not have any incapacitating episodes due to signs or symptoms of any stomach or duodenum condition. The examiner noted that the Veteran was treated for a duodenal ulcer and gastritis in 2005. However, with proper treatment, these ulcers healed after several months. The Veteran had been on PPI longterm and had been asymptomatic for several years. As a result, the examiner found that the condition had resolved and there were no residuals of this condition. In an October 2016 addendum opinion, a VA examiner found that the Veteran did not have evidence of a chronic ulcer condition. The Veteran’s esophageal ulcer/erosive esophagitis had resolved and he was not being treated for this condition. His use of Nexium had no effect on his resolved ulcer condition, but he did have persistent GERD symptoms that were being controlled by Nexium. The Veteran underwent a VA examination in April 2017. The Veteran had a diagnosis of GERD as he reported having daily episodes of heartburn. He was currently taking Protonix as he took continuous medication for this condition. His symptoms included pyrosis. He did not have an esophageal stricture, spasm of the esophageus, or an acquired diverticulum of the esophagus. The Veteran’s GERD did not impact his ability to work. The Veteran underwent a VA examination for intestinal conditions in October 2019. The Veteran noted that he had experienced abdominal pain for the past 3 years which had yet to be treated. An esophagogastroduodenoscopy (EGD) revealed prominent gastric folds in the antrum, mild duodenitis. However, no intestinal condition diagnosis was warranted as the Veteran’s conditions were better addressed with his diagnosed GERD in the esophageal conditions. The examiner found that there was no clinical evidence or imaging studies indicating a stricture, spasm or acquired diverticulum of the esophagus. The prominent gastric folds within the antrum were considered a benign etiology as there was no disability manifested by the gastric folds. The finding of duodenitis was likely an acute inflammatory process noted during the 2016 EGD. Regarding his esophagitis, the examiner found that the Veteran had been managing his symptoms of esophagitis daily with medication and would become symptomatic without the daily use of medication. There was no evidence of gastritis since 2010 and it was therefore resolved and not a disability. The Veteran underwent a VA examination for GERD in October 2019. The examiner noted that the Veteran had been diagnosed with GERD and erosive gastritis and had been on PPI treatment for this condition. The Veteran continued to experience symptoms of persistent GERD which he had managed with a PPI. The examiner noted that the Veteran’s esophagitis was a chronic condition which progressed from his existing GERD. The examiner noted that the Veteran’s condition had remained the same and that he took Prilosec twice daily. The examiner said the Veteran’s symptoms were well-controlled and he did not experience any symptoms due to any esophageal condition including GERD when medicated. The examiner noted though that without medication, the Veteran will experience nausea, heartburn, burning in stomach and throat, vomiting and regurgitation. The examiner also found that the Veteran’s GERD impacted his ability to work as he potentially experienced a week lost in the previous 12 months, due to frequent symptoms including episodes of nausea, vomiting, stomach pain and indigestion; requiring multiple restroom breaks, inability to sit for prolonged periods, missed shifts and tardiness leading to decreased productivity and efficiency. Per the March 2020 Board remand instructions, a VA examiner provided a records review opinion in August 2020. It was noted that the Veteran had GERD and esophagitis. The Veteran reported persistent epigastric pain without early satiety, dysphagia, nausea, vomiting, hematemesis, weight loss, weight gain, fever, chills, fatigue, decreased appetite, diarrhea, constipation, hematochezia, melena, bloating, malodorous flatus, anal pain or NSAID use. The Veteran took Omeprazole twice a day. His symptoms included substernal pain. He did not have an esophageal stricture, spasm of the esophageus, or an acquired diverticulum of the esophagus. His esophageal conditions did not impact his ability to work. The examiner noted that there had been no recurrence of ulcers in his esophagus and/or antrum. The Veteran required daily maintenance for his GERD through the use of PPI. At the time the Veteran was diagnosed with ulcers, he was a heavy smoker which is a risk factor in the development of ulcers but he has since discontinued smoking. The examiner found that a discontinuation of his medication would not result in the development of ulcers. The examiner opined that it was less likely than not that the Veteran’s ulcer disorder would become symptomatic without the daily use of medication. In a September 2020 addendum opinion, the VA examiner indicated that the Veteran’s current health record was silent for any symptoms related to GERD. The examiner found that the Veteran could remain asymptomatic without daily use of medication. The examiner noted that on a recent private medical treatment report in June 2020, the Veteran reported no nausea, vomiting, heartburn, regurgitation, difficulty swallowing, loss or appetite or abnormal weight loss. The examiner also noted that the Veteran’s last endoscopic examination in August 2016 was negative for recurrent ulcer disorder. The examiner found that the Veteran’s ulcer disorder would not become symptomatic without daily use of medication. Based on the evidence of record, the Board finds that the Veteran’s symptoms of GERD more closely approximate an initial 30 percent disability rating for his service-connected GERD. Notably, in a September 2020 addendum opinion, a VA examiner noted that the Veteran recently reported no nausea, vomiting, heartburn, regurgitation, difficulty swallowing, loss or appetite or abnormal weight loss. However, the October 2019 VA examiner specifically indicated that without medication, the Veteran will experience nausea, heartburn, burning in stomach and throat, vomiting and regurgitation. The examiner also found that the Veteran’s GERD impacted his ability to work as he potentially experienced a week lost in the previous 12 months, due to frequent symptoms including episodes of nausea, vomiting, stomach pain and indigestion; requiring multiple restroom breaks, inability to sit for prolonged periods, missed shifts and tardiness leading to decreased productivity and efficiency. Additionally, in August 2020, the same VA examiner who provided the September 2020 VA addendum opinion, noted that the Veteran reported experiencing persistent epigastric pain. As a result and when affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s GERD results in considerable impairment of heath. Thus, the overall evidence reflects that the Veteran’s GERD is manifested by persistently recurrent epigastric distress with nausea, burning in stomach and throat, vomiting and regurgitation. However, the Board further finds that the evidence fails to reveal more severe manifestations that more nearly approximate the levels required for an initial 60 percent rating. As noted above, a maximum rating of 60 percent is authorized for GERD with symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia; or other symptom combinations productive of a severe impairment of health. See 38 C.F.R. § 4.114, Diagnostic Code 7346 (2020). Notably, the medical evidence of record does not demonstrate that the Veteran has experienced material weight loss, hematemesis, melena, anemia or any other symptoms productive of severe impairment of health. In addition, neither the VA examiner nor any of the VA treatment providers have determined that the Veteran’s symptoms of GERD were productive of severe impairment of health as none of the VA examiners specifically listed GERD or esophagitis as being productive of severe impairment of health as one of the Veteran’s symptoms. There is also nothing in the record that would indicate the Veteran’s GERD more nearly approximated the above symptoms or other symptoms productive of severe impairment of health. As noted above, a 50 percent rating is warranted under Diagnostic Code 7203 for severe esophageal stricture, permitting liquids only. However, all the VA examiners specifically indicated that the Veteran did not have an esophageal stricture, spasm of the esophageus, or an acquired diverticulum of the esophagus. Therefore, the criteria for an initial 60 percent disability rating for GERD have not been met or approximated. Accordingly, the Board finds that an initial 30 percent disability rating, but no higher, is warranted for the Veteran’s GERD. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James A. DeFrank, 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.