Citation Nr: 21063838 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-58 912 DATE: October 18, 2021 ORDER An initial compensable rating for gastroesophageal reflux disease (GERD) prior to December 29, 2014, is denied. FINDING OF FACT Prior to December 24, 2014, the Veteran's GERD did not more nearly approximate two or more symptoms for the 30 percent rating under Diagnostic Code (DC) 7346 of less severity at any time. CONCLUSION OF LAW The criteria for an initial compensable rating for GERD prior to December 24, 2014, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.31, 4.114, Diagnostic Code (Code) 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1988 to May 1988 and from October 2004 to December 2006. The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2018. A transcript of the hearing is of record. In September 2018 decision, the Board granted an increased rating of 10 percent for GERD as of December 29, 2014, but denied a compensable rating prior to that date. The Veteran appealed the denial of an increased rating prior to December 29, 2014, to the United States Court of Appeals for Veterans Claims (Court). In an April 2021 memorandum decision, the Court vacated and remanded that portion of the September 2018 Board decision that denied a compensable rating prior to December 2014 and remanded the matter for further adjudication. Entitlement to an initial compensable rating for GERD prior to December 24, 2014. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Court has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection for GERD was granted in a July 2015 rating decision. The noncompensable (0 percent) initial disability rating was awarded under the provisions of Code 7346 as analogous to hiatal hernia, from the date of claim in December 2006. The Court's memorandum decision notes that the Veteran and his representative contend that the Veteran's GERD was manifested by the identical symptoms prior to December 29, 2014, as those utilized by the Board to award a 10 percent rating effective from that date. Specifically, it was noted that the Board's grant of a 10 percent rating was based upon symptoms of pyrosis, reflux, phlegm, edema along the voice box, and dysphagia, which were symptoms that the Veteran reported having prior to December 2014. Review of the record shows that the Veteran was afforded a general medical examination by VA in March 2007. At that time, evaluation of the abdomen was noted to be soft with a diagnosis of GERD. The Veteran was also noted to be on the medication Aciphex. He reported having heartburn one time in the daytime and one time during the night. There was no ventral hernia, no tenderness, no obstruction and no spasm. The Veteran's VA outpatient treatment records show that in July 2012, while being evaluated for a disability unrelated to this appeal, the Veteran reported having GERD symptoms "rarely." In February 2013, while undergoing an otolaryngology consultation, it was noted that the Veteran presented with a history of post-nasal drip. At that time, he denied globus or reflux symptoms. He also denied nasal congestion or sinus complaints with the only issue being clear fluid. He stated that his symptoms increased with mowing the lawn in the spring and summer. The Veteran had similar complaints of postnasal drip in April 2013 when he again denied globus or reflux symptoms. He was given a nasal steroid spray without improvement. The assessment was postnasal drip allergic, versus reflux related. On follow-up in May 2013, he was noted to have complaints of rhinitis, a persistent cough, sore throat, and left ear pain. The assessment was otitis media and possible "viral component." Two weeks later he was again followed up for nasal issues. At that time while reflux was noted in the assessment, no findings of reflux were found on examination. Additional VA outpatient treatment records show that in June 2013 the Veteran was treated for allergies consisting of a runny nose and post-nasal drip. At that time, it was noted that he had been put on anti-reflux medication with mild improvement. He also used antihistamine medication. His symptoms appeared to exacerbate with spring and fall and he believed that exposure to pollen while working in his landscaping and janitorial business exacerbated his symptoms. Examination did not report symptoms of GERD. The impression and plan were that the symptoms were somewhat suggestive of environmental allergies. His treatment for acid reflux was also noted. On follow up for his nasal issues in August 2013, it was noted that he had been taking medication for his post-nasal drip symptoms that were much improved with decreased phlegm and post-nasal drip. Physical examination showed no symptoms of reflux, although reflux was noted among the assessments. In February 2014, the Veteran was evaluated for his chronic history of nasal obstruction, post-nasal drip, reflux, and obstructive sleep apnea (OSA). He had been using his current regimen of medication and nasal sprays that he stated had been successful. He denied any changes in his symptoms and felt he was improved overall. Physical examination did not find symptoms of GERD. The assessments were chronic rhinitis, post-nasal drip and OSA. In April 2014, it was noted that allergy testing disclosed allergy to ragweed, aspergillus, cats, dogs, Hormodendrum, white pine, beach, cockroach, mites, birch feathers, elm, maple, plantain, oak, Helminthosporium, cedar, many types of grasses, cottonwood, and willow. His nasal spray and antihistamine medications were changed. His main complaint was of phlegm. Allergy shots were recommended along with nasal sinus irrigation for his allergic rhinitis. No symptoms of reflux were reported. In a March 2018 letter, the Veteran's VA otolaryngology physician noted that the Veteran had been treated at the ENT clinic since 2013 for long standing symptoms of postnasal drip and reflux. The Veteran also had a cough and phlegm production that may be related to the reflux. The physician went on to state that human body could produce phlegm as a way to protect itself from the effects of stomach acid reflux. The Veteran was treated for both reflux and rhinitis symptoms of nasal congestion and post nasal drip. These symptoms had improved. An examination was conducted by VA on December 29, 2014. At that time, the Veteran reported signs and symptoms of GERD to be pyrosis and reflux. He did not report having esophageal stricture, spams of the esophagus, acquired diverticulum of the esophagus, or other signs or symptoms of GERD. The examiner also noted that the Veteran's GERD did not have a functional impact on his ability to work. The Veteran's GERD is rated by analogy to 38 C.F.R. § 4.114, Diagnostic Code (DC) 7346, for hiatal hernia. Pursuant to DC 7346, a 10 percent disability rating is warranted for two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent evaluation is warranted for persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The 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. In every instance where the minimum schedular evaluation requires residuals and the schedule does not provide a no percent evaluation, a no percent evaluation will be assigned when the required residuals are not shown. 38 C.F.R. § 4.31. After careful consideration of the evidence outlined above, the Board finds that the Veteran's GERD did not manifest in two or more symptoms for the 30 percent evaluation of less severity at any time prior to December 29, 2014. The Veteran demonstrated complaints of heartburn, otherwise known as pyrosis on examination in 2007, but stated that he rarely had such symptoms when being evaluated in 2012. Treatment records throughout 2013 and 2014 show symptoms of post-nasal drip and other nasal symptoms that the Veteran treating physician stated may be related to his reflux, but during those evaluations he specifically denied symptoms of reflux or there were no findings specific to GERD noted. As noted, his VA physician stated in a 2018 letter that the Veteran's post-nasal drip symptoms "may" be related to his GERD, but the contemporaneous treatment records show allergies to numerous allergens for which shots were recommended. Significantly, the Board finds the treatment records to be more probative in establishing what symptoms the Veteran experienced prior to 2014, as statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy where the declarant has a strong motive to tell the truth in order to receive proper care. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate). Moreover, the Veteran was not shown to exhibit more than a single symptom that might be attributed to his GERD during this time, be it reflux prior to 2013, or post-nasal drip, or excess phlegm during the treatment reports in 2013 and 2014. In the Court's decision, it was pointed out that the September 2018 Board decision had listed the Veteran as having symptoms of pyrosis, reflux, phlegm, edema along the voice box and dysphagia to support its award of a compensable rating from December 2014. Reflux is not shown in the record until the VA examination conducted in December 2014. The Veteran did not have complaints of excess phlegm until 2013 at the earliest and, on those occasions, there were no complaints of pyrosis reflux, edema along the voice box or dysphagia reported. While the Veteran has not stated that he had all of these prior to December 29, 2014, this statement is not found credible in light of the extensive 2013 and 2014 treatment records that do not document such complaints. As noted, the 2018 statement of the Veteran's treating ENT physician is not found to be probative in that it is not supported by the actual examination reports of record prior to December 2014. Accordingly, the Veteran's GERD did not manifest in two or more symptoms for the 30 percent evaluation of less severity prior to the examination report on December 29, 2014. Finally, it is noted that, at the suggestion of the Board in the September 2018 decision, the Veteran claimed, and service connection was established for rhinitis that can account for many of the symptoms that the Veteran attributes to his GERD and for which separate compensation may be awarded. There is no reasonable doubt to be resolved. The Veteran's GERD does not more nearly approximate the criteria corresponding to a compensable rating. As the criteria for a 10 percent rating under DC 7346 are not met, a noncompensable rating is warranted. See 38 C.F.R. § 4.31. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph P. Gervasio 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.