Citation Nr: 21064987 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 11-00 464 DATE: October 22, 2021 ORDER Entitlement to an evaluation of 50 percent for gastroesophageal reflux disease (GERD) with Barrett's esophagitis and esophageal stricture is granted. Entitlement to a rating of 30 percent for esophageal stricture Barrett's esophagitis is granted. FINDINGS OF FACT 1. The Veteran's GERD with Barrett's esophagitis and esophageal stricture is severe and permits the passage of liquids only, but is not productive of marked impairment of the Veteran's health, nor of frequent hospitalizations or other manifestations so unusual as to render the rating schedule incapable of accounting for the level of disability. 2. The Veteran's gastroesophageal symptoms have included persistent epigastric distress, pyrosis, dysphagia, and regurgitation, with an overall disability picture productive of considerable impairment of health, but not so unusual as to render the rating schedule incapable of accounting for the level of disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation of 50 percent for GERD with Barrett's esophagitis and esophageal stricture have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, Diagnostic Code (DC) 7203. 2. The criteria for entitlement to a rating of 30 percent for esophageal stricture Barrett's esophagitis based on recurrent epigastric distress have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, DC 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1983 to January 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were before the Board in October 2017, April 2020, and May 2021, on which occasions it was remanded for development. They now return to the Board for appellate review. The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating 1. Entitlement to increased ratings for GERD with Barrett's esophagitis and esophageal stricture Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held 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). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation 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. The Veteran and his representative have also argued that extraschedular evaluation is warranted for the Veteran's gastroesophageal symptoms. The matter was referred to the Director of Compensation Service who, in June 2019, and as discussed below, found extraschedular evaluation unwarranted in this case. The Board retains jurisdiction over the final determination. If, however, the ratings criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). The Veteran's condition has been evaluated separately under two DCs. Under DC 7203, for which the Veteran is in receipt of a 30 percent evaluation, a 50 percent rating requires a showing of severe esophageal stricture permitting the passage of liquids only; and an 80 percent evaluation requires a showing of marked impairment of general health, with esophageal stricture permitting the passage of liquids only. Under DC 7346, for which the Veteran is in receipt of a 10 percent evaluation, a 30 percent rating is available where the record shows persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, with substernal or arm or shoulder pain, productive of considerable impairment of health; and a 60 percent rating where the record shows symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. Turning to the evidence of record, VA treatment records throughout the appeal period show a panoply of symptoms including gastric distress, nausea, dysphagia, pyrosis, regurgitation, gastric and chest pain, and sleep disturbance due to epigastric symptoms. VA examination notes from November 2008 show the Veteran was beset by difficulty consuming solid foods, with frequent acid reflux and throat pain, but otherwise no symptoms that would interfere substantially with day-to-day functioning. November 2016 VA examination notes flesh out the Veteran's symptomatology, noting longstanding and frequent acid reflux and substernal pain, but opined that the Veteran was "not precluded from physical or sedentary employment due to GERD as it does not affect occupational functioning." At a September 2019 VA examination, a range of symptoms including persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, nausea, and substernal pain was noted, as was the Veteran's marked difficulty swallowing dry solids. The Veteran's condition also was noted to lead to frequent bouts of bloating and gas, contributing to his discomfort. Pursuant to a Board remand, a VA examiner in October 2020 furnished a block of text from the Mayo clinic website expounding on GERD and its manifestations generally, with no application of that information to the Veteran's case. A November 2020 addendum allows that the Veteran's condition, while limiting, is "not yet severe because he is able to swallow solids (with difficulty) and is not restricted to liquids only," while confirming the presence of the aforementioned symptoms. Finally, a July 2021 VA examiner confirmed the presence of the symptoms listed above, characterizing the Veteran's esophageal stricture as severe and "permitting liquids only," but indicated that esophagitis and esophageal stricture had no impact on occupational capability, while GERD had only a small impact insofar as it necessitated the Veteran take breaks when reflux or chest pain occurred. A review of this evidence convinces the Board that evaluations of 50 percent under DC 7203, and 30 percent under DC 7346, but no higher, are warranted in this case. With respect to DC 7203, while the most recent VA examiner indicated the Veteran was not altogether unable to consume solid foods, his outright inability to eat dry solids, and the apparent risk associated with his consumption of any solid food, which risk is evinced by records throughout the appeal period, convinces the Board that an evaluation of 50 percent is more appropriate, based on severe esophageal stricture permitting liquids only. The record indicates the Veteran is essentially functionally limited to liquid foods, and as such, resolving reasonable doubt and ambiguity in his favor, the higher evaluation is warranted. There is no basis for an evaluation of 80 percent based on "marked impairment of general health." The VA examiners with whom the Veteran has met and who reviewed the medical evidence in this case are unanimous that any occupational impact of the Veteran's esophageal stricture would be minimal. These findings are uncontroverted by objective evidence in the record or the assessment of any treating provider. As no provider or examiner has indicated findings approaching a level of severity as to equate to "marked impairment of general health," entitlement to the maximum 80 percent evaluation under DC 7203 is unwarranted. As for DC 7346, the Board finds warranted assignment of a 30 percent evaluation for the entirety of the appeal period based on persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal pain; each symptom associated with DC 7346 has been present throughout the appeal period, and the Veteran's overall disability picture has thus been productive of considerable impairment of health. A higher evaluation is not warranted, however, as the evidence does not reflect material weight loss, frequent vomiting, hematemesis, melena with anemia, or other symptom combinations productive of severe impairment of health. These symptoms are absent from the record, and no treating or examining provider has indicated findings approaching a level of severity as to equate to "severe impairment of health." Finally, with respect to extraschedular consideration, the matter was referred in June 2019 to the Director of Compensation Service for such consideration, and the Director found extraschedular evaluation not warranted. The Board agrees, and affords great probative value to the July 2021 VA examiner who explained that while the Veteran is essentially limited to liquid foods, esophagitis and esophageal stricture do not confer an occupational limitation, while GERD conferred only a small limitation due to the need for occasional breaks when symptoms flared. The record is bare of evidence contradicting this assessment. For instance, the Veteran has not required frequent or prolonged hospitalization due to GERD, esophagitis, or esophageal stricture, and treatment and examination records do not reflect symptoms that would require extended bedrest, absences from work, or that would prevent the Veteran from securing and maintaining employment. Most importantly, the record does not reveal symptoms associated with the Veteran's conditions that are not contemplated by the aforementioned rating criteria. Accordingly, the Board finds the Veteran's disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate. Thun v. Peake, 22 Vet. App. 111 (2008). GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sahraie, 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.