Citation Nr: 21062289 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 16-62 502 DATE: October 6, 2021 ORDER A 60 percent rating for gastroesophageal reflux disease (GERD), from January 28, 2015 to the present, is granted. A total disability rating based on individual unemployability (TDIU), from January 28, 2015 to July 22, 2019, is granted. Basic eligibility for Dependents' Educational Assistance (DEA) is warranted from January 28, 2015. FINDINGS OF FACT 1. From January 28, 2015 to the present, the Veteran's GERD manifested as pain, vomiting, frequent sleep disturbance, material weight loss, persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of severe impairment of health. 2. From January 28, 2015 to July 22, 2019, the Veteran's service-connected GERD prevented him from securing or following a substantially gainful occupation. 3. The Veteran has a total disability rating, from January 28, 2015. CONCLUSIONS OF LAW 1. From January 28, 2015 to the present, the criteria for a maximum, 60 percent rating for GERD, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.114, Diagnostic Code (DC) 7399-7346. 2. From January 28, 2015 to July 22, 2019, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.16. 3. From January 28, 2015, the criteria for basic eligibility for DEA have been met. 38 U.S.C. §§ 3501, 5107(a), 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1992 to March 1998. This matter was previously before the Board of Veterans' Appeals (Board) in June 2020 when a rating higher than 10 percent for GERD, prior to June 27, 2019, was denied, and a 30 percent rating, from June 27, 2019 to the present, was granted. A March 2021 joint motion for remand (JMR) from the United States Court of Appeals for Veterans Claims (Court) vacated the June 2020 Board decision and remanded the matter for further development and re-adjudication. Upon further review, in accordance with the March 2021 JMR, a maximum, 60 percent rating for GERD, from January 28, 2015 to the present, will be granted. A TDIU, from January 28, 2015 to July 22, 2019, will be granted. Basic eligibility for DEA is warranted from January 28, 2015. Increased Ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects the Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran's symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. 38 C.F.R. § 4.2; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 1. A maximum, 60 percent rating for GERD, from January 28, 2015 to the present, is granted. The Veteran contends that his GERD is worse than that which is contemplated by his 10 percent rating, prior to June 27, 2019, and his 30 percent rating, from June 27, 2019 to the present. The Veteran submitted a claim for an increased rating for his service-connected GERD on January 28, 2015. For the following reasons, a maximum, 60 percent rating, is warranted from January 28, 2015 to the present, and the claim is granted. The Veteran's GERD is rated under DC 7399-7346. See 38 C.F.R. § 4.114, DC 7346. A 10 percent disability rating is warranted with two or more of the symptoms for a 30 percent disability rating with less severity. 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 maximum schedular 60 percent disability 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. Id. From January 28, 2015 to the present, the evidence shows that the Veteran's GERD results in pain, vomiting, frequent sleep disturbance, material weight loss, persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of severe impairment of health, which warrants a maximum, 60 percent rating. VA medical records shows that, as early as June 1999, the Veteran reported that symptoms of his GERD interfere with his normal activities of daily living. During the May 2015 VA examination, the examiner noted a diagnosis of GERD with symptoms of pyrosis and reflux. The examiner noted that the Veteran does not have esophageal stricture, spasm of esophagus, or an acquired diverticulum of the esophagus. During the May 2016 VA examination, the Veteran reported symptoms of regurgitation, which occurs two to three times monthly. The examiner noted symptoms of infrequent episodes of epigastric distress, dysphagia, pyrosis, reflux, regurgitation, and vomiting with a frequency of four or more days per year and an average duration of less than one day per episode. The examiner noted no difficulty swallowing. The examiner noted normal primary and secondary peristaltic waves. The examiner noted that no area of stenosis or intrinsic or extrinsic mass lesions were seen. An October 2018 VA emergency department triage note shows that the Veteran reported that his GERD is "acting up." An October 2018 VA mental health note shows that the Veteran reported a recent emergency department visit for the purpose of acquiring medicine for his GERD. During the June 2019 VA examination, the Veteran reported persistent heartburn, and constant regurgitation and sleep disturbances. The examiner noted the use of Prilosec and Zantac to treat the Veteran's GERD. The examiner noted the following symptoms: persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal pain, sleep disturbance with a frequency of four or more days per year with a duration of one to nine days per episode, nausea with a frequency of four or more days per year with a duration of less than one day per episode and vomiting with a frequency of four or more days per year with a duration of less than one day per episode. The examiner noted that the Veteran does not have esophageal stricture, spasm of esophagus, or an acquired diverticulum of the esophagus. The examiner noted that the Veteran reported nightly sleep disturbances, which negatively impact his ability to remain focused to complete occupational tasks. During the September 2019 VA examination, the Veteran reported nighttime reflux and burning of the nose and throat. He reported having to sleep with several pillows laying horizontally. He also reported nighttime awakening from acid reflux with panic, burning of the esophagus and the nostril, vomiting, sleep disturbance, and heartburn. The examiner noted the use of Prilosec daily. Symptoms were noted as persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, sleep disturbance with a frequency of four or more days per year with a duration of one to nine days per episode, nausea with a frequency of four or more days per year with a duration of one to nine days per episode and vomiting with a frequency of four or more days per year with a duration of one to nine days per episode. The examiner noted that the Veteran does not have esophageal stricture, spasm of esophagus, or an acquired diverticulum of the esophagus. In terms of functional impact, the examiner noted that the Veteran's GERD causes regurgitation, heartburn, nausea, and vomiting. The examiner noted that the Veteran's GERD is very irritating to the Veteran and requires him to drink a lot of water. The Veteran reported being written up at work for having to take frequent breaks to get water to help relieve his symptoms. The examiner noted that the Veteran's GERD also causes him to have frequent nighttime awakening with epigastric distress, impacting his ability to sleep, and affecting his ability to get up and be on time to work. During the January 2020 Board hearing, the Veteran stated that his GERD has worsened since his last VA examination in 2015. He stated that he is unable to sleep at night because he is unable to lay down. Specifically, the Veteran stated that his condition causes vomiting and that he must sleep in an upright position. He also stated that his medicine does not help. The Veteran stated that when attempting to lay on his stomach, he experiences under arm pain into his chest. During the March 2020 VA examination, the Veteran reported that he cannot lay down and that he must sleep sitting up. He also reported vomiting two to three times a week and that food is not digesting in his stomach. He stated that the burning in the back of his throat is so bad that it causes a stinging sensation in his throat. He stated that during episodes of regurgitation, he is unable to clear his throat, and that he vomits constantly until his stomach is empty. He also reported that he is sometimes unable to sleep at night due to his symptoms. He reported that his weight has dropped from 215 pounds to 185 pounds. He reported constant vomiting. He reported that his symptoms have been ongoing for past two years. The examiner noted that the Veteran uses Ranitidine and Rolaids to treat his GERD. The examiner noted the following symptoms: persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, sleep disturbance with a frequency of four or more days per year with a duration of less than one day per episode, material weight loss, nausea with a frequency of four or more days per year with a duration of less than one day per episode and vomiting with a frequency of four or more days per year with a duration of less than one day per episode. The examiner noted that the Veteran does not have esophageal stricture, spasm of esophagus, or an acquired diverticulum of the esophagus. The examiner noted that the Veteran reported being tired after being awake at night due to symptoms of his GERD. The examiner noted that the Veteran subjectively reports having to sleep in an upright position due to symptoms of pyrosis, nausea and vomiting, and difficulty with food digesting and not "going down." The examiner noted that the Veteran's subjective symptoms are consistent with worsening of his GERD condition. An April 2020 VA primary care note shows that the Veteran reported that his GERD is unbearable, and he cannot comfortably lay down to rest. He reported pain under left arm and chest cavity. In a statement received in May 2020, the Veteran reported that his symptoms of sleep disturbance, nausea, and vomiting impact his ability to work. In a statement received in June 2021, the Veteran's spouse stated that she has been married to the Veteran since 2009. She reported that she has witnessed the Veteran's heartburn worsen from moderate to severe. She reported that the Veteran makes frequent trips to the bathroom at night to vomit, he complains of pain and a burning sensation, and his symptoms can last three to four hours. She reported that the Veteran is usually awakened from sleep gurgling from heartburn and regurgitation. From January 28, 2015 to the present, the record shows that the Veteran's symptoms are productive of severe impairment of health. As discussed above, the medical evidence shows that, as early as June 1999, the Veteran reported that symptoms of his GERD interfere with his life. In February 2004, the Veteran reported that symptoms of his GERD had worsened, and a May 2004 VA upper GI study shows a large sliding hiatal hernia with, at worst, grade III reflux. The Veteran's spouse reported that, since 2009, she has witnessed the Veteran making frequent trips to the bathroom at night to vomit, with symptoms lasting up to four hours. The medical and lay evidence shows that symptoms of the Veteran's GERD have caused significant sleep disturbances due to vomiting and regurgitation that at times render the Veteran unable to sleep at all at night. Considered in the light most favorable to the Veteran, together, the medical and lay evidence shows that the Veteran's symptom combinations, to include severe sleep disturbance, are productive of severe impairment of health. Therefore, a maximum, 60 percent rating, is warranted, from January 28, 2015 to the present. In conclusion, from January 28, 2015 to the present, the evidence shows that a maximum, disability rating of 60 percent for GERD is warranted and, the claim is granted 2. TDIU, from January 28, 2015 to July 22, 2019, is granted. The Veteran was granted a TDIU, effective July 23, 2019. Thus, the discussion below will address the issue of a TDIU prior to July 23, 2019. For the period from January 28, 2015 to July 22, 2019, a TDIU is warranted. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a fact found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. Assignment of a TDUI evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran can perform the physical and mental acts required by employment, not whether he or she can find employment. Id. As discussed above in this decision, the Veteran's service-connected GERD is now rated as 60 percent disabling, from January 28, 2015 to the present. Therefore, as of January 28, 2015, the Veteran meets the minimum schedular rating necessary for a TDIU. 38 C.F.R. § 4.16(a). A March 2004 VA Vocational Rehabilitation record shows that the Veteran had been earning $2,400 monthly since 2001, operating his own business. During the May 2015 VA examination for GERD, the examiner noted that the condition does not impact the Veteran's ability to work. However, no explanation was provided. In a statement received in August 2015, the Veteran reported that he was approved for unemployment in 2012. In the October 2015 request for approval of school attendance, the Veteran reported his status as a full-time student. He reported less than $10,000 in annual income. During the May 2016 VA examination for GERD, the examiner noted that the condition does not impact the Veteran's ability to work. However, no explanation was provided. In the June 2016 request for approval of school attendance, the Veteran reported his status as a full-time student. He reported no income. An October 2018 VA mental health note shows that the Veteran reported that he lost his job as a driver in April 2018 when he tested positive for cannabis. He reported that he currently arranges music concerts for his brother and washes cars. A February 2019 VA report of general information shows that the Veteran was noted as at risk of becoming homeless. A February 2019 VA social work note shows that the Veteran reported that he was struggling to meet financial obligations. He reported working with VA compensated work therapy (CWT) earning $1,000 monthly. In an April 2019 statement by a CWT coworker, the coworker stated that the Veteran has completed most days at work, but that the Veteran struggles to meet the few requirements of the job due to anger, hostility, aggressive behavior, and discontent. During the June 2019 VA examination, the examiner stated that the Veteran's GERD impacts employment due to nightly sleep disturbances which negatively impacts his ability to remain focused to complete occupational tasks. A June 2019 VA record shows that the Veteran was released from his CWT assignment due to lack of attention, discontentment when working with others, and poor performance and attendance. During the September 2019 VA examination, the examiner stated that the Veteran's GERD causes him to have frequent nighttime awakening with epigastric distress, impacting his ability to sleep, and affecting his ability to get up and be on time to work. During the March 2020 VA examination, the examiner noted that the Veteran's GERD impacts his ability to work due to being tired after being awake at night sick from GERD symptoms. As noted above, the Veteran's spouse of approximately 12 years reported that the Veteran makes frequent trips to the bathroom at night to vomit and that he is usually awakened from sleep due to gurgling from heartburn and regurgitation. Additionally, other than odd jobs and VA CWT participation, for the period from January 28, 2015 to the present, the record shows that he has not been able to secure or follow a substantially gainful occupation. From January 28, 2015 to the present, the record consistently shows that symptoms of the Veteran's GERD cause severe sleep disturbance. Taken together, the medical evidence and lay statements show that symptoms of the Veteran's GERD have had a severe impact on his ability to secure or follow substantially gainful employment. Thus, viewed in the light most favorable to the Veteran, from January 28, 2015 to the present, the record shows that the Veteran's service-connected GERD prevented him from securing or following a substantially gainful occupation. Therefore, a TDIU is warranted, and the claim is granted. 3. Basic eligibility for DEA is warranted from January 28, 2015. Dependents' Educational Assistance under Chapter 35, Title 38, of the United States Code, is a program of education or special restorative training that may be authorized for an eligible person, such as a spouse, surviving spouse, or children, if the applicable criteria are met. See 38 U.S.C. §§ 3500, 3501, 3510, 3512; 38 C.F.R. §§ 21.3020, 21.3021. Basic eligibility for certification of Dependents' Educational Assistance can be met for the spouse, surviving spouse, or child of a Veteran, if the Veteran has a permanent, total service-connected disability. 38 U.S.C. § 3501. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability rating. 38 C.F.R. § 3.340(a)(2). (CONTINUED ON THE NEXT PAGE.) As decided above, the Veteran now has a TDIU, from January 28, 2015. Therefore, entitlement to an effective date of January 28, 2015 for the establishment of basic eligibility for DEA is warranted. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart The Board's decision is only binding on this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.