Citation Nr: 21066784 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-63 836 DATE: November 2, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for cervical spine strain has been withdrawn. Entitlement to an evaluation in excess of 50 percent for sleep apnea has been withdrawn. Entitlement to an evaluation in excess of 40 percent for residuals of head injury with post traumatic headaches has been withdrawn. Entitlement to an evaluation in excess of 20 percent for right shoulder condition has been withdrawn. Entitlement to an evaluation in excess of 20 percent for back condition, lumbar degenerative disc disease has been withdrawn. Entitlement to an evaluation in excess of 10 percent for left knee degenerative joint disease has been withdrawn. Entitlement to an initial disability evaluation in excess of 10 percent for dyspepsia or gastroesophageal reflux disease (GERD) is denied. Entitlement to an evaluation in excess of 10 percent for left lower extremity radiculopathy has been withdrawn. FINDINGS OF FACT 1. In November 2019, prior to the promulgation of a decision in the appeals, the Board received notification from the appellant that a withdrawal of the appeals for increased ratings for cervical spine strain, sleep apnea, brain disease (residuals of hear injury), right shoulder, lumbar degenerative disc disease, left knee, and left lower extremity radiculopathy is requested. 2. For the entire increased rating period, GERD symptoms were not productive of considerable impairment of health. CONCLUSIONS OF LAW 1. The criteria have been met for withdrawal of entitlement to increased ratings for cervical spine strain, sleep apnea, brain disease (residuals of hear injury), right shoulder, lumbar degenerative disc disease, left knee, and left lower extremity radiculopathy. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. For the entire increased rating period, the criteria for an increased rating in excess of 10 percent for GERD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.10, 4.27, 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1978 to June 1995 and May 2009 to May 2011. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Board notes that in his May 2017 VA Form 9, the Veteran requested a hearing on the issues in his case. As noted above, in November 2019, the Veteran withdrew his appeals and hearing requests for all but one issue. After his withdraw, the Veteran was scheduled for a June 15, 2021 Board hearing that was then cancelled June 16. The Veteran appeared virtually for a hearing, but none was conducted. In August 2021, the Board sent the Veteran a letter requesting clarification if the Veteran was withdrawing his appeal for an increased rating for his GERD. The Veteran did not respond to that letter and thus the appeal remains active. Based on the forgoing, the Board finds that adjudication of the Veteran's increased rating claim for his service-connected GERD is merited based on the statements in his November 2019 correspondence. Increased Rating 1. Entitlement to an evaluation in excess of 10 percent for cervical spine strain is dismissed. 2. Entitlement to an evaluation in excess of 50 percent for sleep apnea is dismissed. 3. Entitlement to an evaluation in excess of 40 percent for residuals of head injury with post traumatic headaches is dismissed. 4. Entitlement to an evaluation in excess of 20 percent for right shoulder condition is dismissed. 5. Entitlement to an evaluation in excess of20 percent for back condition, lumbar degenerative disc disease is dismissed. 6. Entitlement to an evaluation in excess of 10 percent for left knee degenerative joint disease is dismissed. 7. Entitlement to an evaluation in excess of 10 percent for left lower extremity radiculopathy is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the appellant has withdrawn the appeals for increased ratings for cervical spine strain, sleep apnea, brain disease (residuals of hear injury), right shoulder, lumbar degenerative disc disease, left knee, and left lower extremity radiculopathy and, hence, there remain no allegations of errors of fact or law for appellate consideration. In the Veteran's November 2019 statement in support of claim, in which he withdrew the above issues, the Veteran also indicated he was content with his current total rating and requested his Board hearing be cancelled. Accordingly, the Board does not have jurisdiction to review the appeals and they are dismissed. However, the Board notes that the Veteran omitted the issue of entitlement to an evaluation in excess of 10 percent for dyspepsia/gastritis; thus, the issue remains on appeal. 8. Entitlement to an initial disability evaluation in excess of 10 percent for dyspepsia or GERD is denied. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The Veteran's service-connected dyspepsia also diagnosed as GERD has been rated under Diagnostic Code 7399-7307 (which encompasses 7346) at 10 percent disabling throughout the appeal period. 38 C.F.R. § 4.114, Diagnostic Code 7346. Under Diagnostic Code 7346, a 30 percent rating is contemplated for persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, causing considerable impairment of health, and a 10 percent rating is warranted for disability manifested by two or more of the symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114. A rating of 60 percent is assigned 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. The Board finds that, based on the evidence of record, a higher disability rating for GERD is not warranted. In order for the Board to award a higher rating, the evidence would need to show that the Veteran's GERD resulted in persistently recurrent epigastric distress with dysphasia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Id. In a December 2011 VA examination, a VA examiner diagnosed the Veteran with dyspepsia. The Veteran reported occasional nausea, heartburn, diarrhea, and regurgitation if he forgets to take his Nexium, which occur 2 to 3 times per week. He also reported being told he had some kind of ulcer and GERD in 2009. In a June 2013 VA examination, a VA examiner diagnosed the Veteran with gastroesophageal reflux disease (GERD). The Veteran reported symptoms of infrequent episodes of epigastric distress, with pyrosis, reflux, regurgitation, sleep disturbances, weight loss, and nausea. In a June 2017 VA examination, a VA examiner diagnosed the Veteran with GERD. The Veteran reported symptoms of reflux and that he continues taking medication over the counter to treat his stomach condition. A review of VA treatment records shows similar reports of symptoms as found in the VA examinations. The evidence shows the Veteran's GERD and dyspepsia cause two or more of the symptoms for the 30 percent evaluation of less severity but does not show persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, causing considerable impairment of health. Accordingly, a rating in excess of 10 percent is not warranted at this time. The Board notes for the Veteran that this will not affect his current total or combined disability rating and that he is free to file for an increase in the future should his symptoms worsen. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Williams, 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.