Citation Nr: 21067305
Decision Date: 11/03/21	Archive Date: 11/03/21

DOCKET NO. 17-60 254
DATE:  November 3, 2021

ORDER

Entitlement to a rating greater than 10 percent for degenerative joint disease, left knee, prior to April 22, 2021, is denied. 

Entitlement to a rating greater than 20 percent for degenerative joint disease, left knee, due to limitation of motion (LOM) on extension from April 22, 2021, is denied. 

Entitlement to a rating greater than 20 percent for degenerative joint disease, left knee, due to instability from April 22, 2021, is denied. 

Entitlement to a compensable rating for hypertension is denied.

Entitlement to a compensable rating of 10 percent, but no higher, for gastroesophageal reflux disease (GERD) prior to April 22, 2021, is granted.

Entitlement to a compensable rating of 30 percent, but no higher, for GERD from April 22, 2021, is granted.

FINDINGS OF FACT

1. Prior to April 22, 2021, the Veteran's left knee disability manifested as arthritis with LOM on flexion ranging from 125 to 110 degrees and extension ranging from 0 to 5 degrees; without ankylosis, lateral instability, or recurrent subluxation.

2. From April 22, 2021, the Veteran's left knee disability manifested as arthritis with LOM on flexion ranging from 135 to 125 degrees, extension from 5 to 15 degrees, and without ankylosis.

3. From April 22, 2021, the Veteran's left knee disability manifested as arthritis with instability not productive of more than moderate impairment and not productive of unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribing an assistive device (e.g., cane(s), crutch(es), walker) in addition to bracing for ambulation.

4. Throughout the appeal period, the Veteran's hypertension has not manifested in diastolic pressure over 100 or systolic pressure over 160.

5. Prior to April 22, 2021, the Veteran's GERD manifested by pyrosis, reflux, sleep disturbance and nausea; there is no evidence that his symptoms have been productive of dysphagia, accompanied by substernal, arm or shoulder pain, or productive of considerable impairment of health.

6. From April 22, 2021, the Veteran's GERD manifested by persistent recurrent epigastric distress, pyrosis, dysphagia, reflux, regurgitation, sleep disturbances, transient vomiting and nausea, and substernal pain, productive of considerable impairment of health.

CONCLUSIONS OF LAW

1. Prior to April 22, 2021, the criteria for a greater than 10 percent rating for the Veteran's left knee disability are not met. 38 U.S.C. §§1155, 5107; 38 C.F.R. §§3.102, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (Codes) 5003, 5260, 5261, 5257 (pre and post February 7, 2021).

2. From April 22, 2021, the criteria for a greater than 20 percent rating for the Veteran's left knee disability based on limitation of motion are not met. 38 U.S.C. §§1155, 5107; 38 C.F.R. §§3.102, 4.40, 4.45, 4.59, 4.71a, Codes 5003, 5260, 5261 (pre and Post February 7, 2021).

3. From April 22, 2021, the criteria for a rating greater than 20 percent for left knee disability based on instability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Codes 5003, 5257 (pre and post February 7, 2021).

4. Throughout the appeal period the criteria for a compensable disability rating for hypertension are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Code 7101.

5. Prior to April 22, 2021, the criteria for a 10 percent rating, but no higher, for GERD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Code 7346.

6. From April 22, 2021, the criteria for a 30 percent rating, but no higher, for GERD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Code 7346.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1979 to July 2003.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office. In December 2019, the Veteran and his spouse testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was previously before the Board in December 2019 at which time the case was remanded for additional development; namely, to afford the Veteran new examinations and to obtain any identified outstanding, pertinent treatment records. There has been substantial compliance with the Board's December 2019 remand directives. Stegall v. West, 11 Vet. App. 268 (1998).

Increased Rating Claims

A. Degenerative Joint Disease, Left Knee

Pertinent Criteria

During the appeal period changes were made to the regulations governing the schedule of rating musculoskeletal disabilities effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). Claims pending prior to the effective date will be considered under both old and new rating criteria as applicable, and whatever criteria is more favorable to the Veteran will be applied. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 

Regarding Code 5003, this was revised to only apply to degenerative arthritis and is otherwise unchanged. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Code 5003). 

Diagnostic Code 5003 provides that degenerative arthritis substantiated by x-ray findings is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. A 20 percent evaluation is warranted for x-ray evidence of involvement of 2 or more major or minor joints, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Code 5003. See also Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). 

Under Diagnostic Code 5260, limitation of flexion of a leg warrants a noncompensable rating when flexion is limited to 60 degrees. A 10 percent rating is warranted if flexion is limited to 45 degrees, and a 20 percent rating is warranted if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees warrants a 30 percent rating.

Under Diagnostic Code 5261, limitation of extension of a leg warrants a noncompensable rating for extension limited to 5 degrees, a 10 percent rating for extension limited to 10 degrees, a 20 percent rating for extension limited to 15 degrees and a 30 percent rating for extension limited to 20 degrees. 38 C.F.R. § 4.71a, Code 5261.

VA's General Counsel has held that separate ratings may be warranted for limitation of flexion and extension when the criteria for compensable ratings are met for such limitation under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). 

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). 

Prior to February 7, 2021, 38 C.F.R. § 4.71a, Code 5257, allows for the assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability of the knee, a 20 percent rating when there is moderate recurrent subluxation or lateral instability of the knee, and a 30 percent evaluation for severe recurrent subluxation or lateral instability of the knee. 

The terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding a higher rating. 38 C.F.R. §§ 4.2, 4.6.

Under the revised version of Code 5257, for recurrent subluxation or lateral instability, a 30 percent rating is assigned for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is assigned for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating is assigned for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. 38 C.F.R. § 4.71a, Code 5257 (effective February 7, 2021).

In cases of patellar instability, a 30 percent rating is warranted for diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker. A 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker.

Under Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon.

Per Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). 38 C.F.R. § 4.71a, Code 5257 (2021).

Facts

Private office notes in 2014 and 2015 show that the Veteran had osteoarthritis in his left knee with pain. Range of motion findings for the left knee are shown on a March 2015 office note as 5 degrees extension and 120 degrees flexion.

The Veteran reported at a May 2015 VA examination that he had daily chronic left knee pain and he was unable to kneel. Abnormal range of motion was noted with flexion limited to 115 degrees. Extension was normal to 0 degrees. The range of motion itself was noted to not contribute to functional loss, but pain was noted on examination on flexion and extension to cause functional loss. When asked if pain, weakness, fatigability, or incoordination significantly limited functional ability after repeated use or during flareups, the examiner said that he was unable to say without resorting to speculation since he only saw three repetitions and since the Veteran was not experiencing a flare up at that time. He did report that there was no additional functional loss or range of motion after three repetitions. Additional contributing factors of disability included disturbance of locomotion and interference with sitting and standing. Findings also revealed left knee tenderness and crepitus, normal muscle strength testing, and no ankylosis or muscle atrophy.

Private office notes from 2015 to 2018 continue to show left knee osteoarthritis with pain. These records contain range of motion findings for the left knee as follows: 5 degrees extension and 120 degrees flexion in July 2016; 0 degrees extension and 125 degrees flexion in December 2017, June 2018, and August 2018.

Initial range of motion findings at a September 2020 QTC examination were abnormal with flexion limited to 110 degrees. Extension was normal to 0 degrees. Pain was noted with flexion and extension and it was found to cause functional loss described as interference with kneeling, squatting, and standing. The same findings are noted after repeated use over time due to pain, weakness, and lack of endurance. There was no additional loss of function or LOM after repetitive use testing. The examiner reported that the Veteran did not have flare ups. There was some reduced strength shown on testing as 4/5, and no muscle atrophy or knee ankylosis. 

The Veteran testified in December 2019 that his left knee disability had become worse since his last examination in May 2015 due to him favoring this knee following total right knee replacement and revision. He complained of left knee swelling and crepitus and he said he was unable to fully extend the knee. He also said that his knee symptoms have caused him to fall and to drop things at his job as a construction worker. 

The Veteran reported at an April 2021 VA examination that he had catching and popping in the left knee. He also reported daily swelling and heat in the left knee with difficulty walking, standing, stair climbing and lifting. He demonstrated abnormal left knee range of motion with flexion to 135 degrees and extension to 5 degrees, with pain. It was noted that he did not have additional decreased ranges of motion due to factors such as pain, weakness, fatigability, or incoordination or after three repetitions. However, he was noted after repeated use to have additional LOM to 130 degrees on flexion and 10 degrees on extension, and during flare ups to have 125 degrees of flexion and 15 degrees of extension. Additional findings reveal that he did not have ankylosis in the left knee or muscle atrophy. Knee instability was noted in the left (and right) knees which the Veteran described as clicking and popping. There were no additional contributing factors of disability found. The examiner reported that the Veteran required a prescription for a knee brace for ambulation, but not for ambulation with patellar instability. He went on to report that the Veteran did not require a cane, walker, or crutches for ambulation due to his left knee. He also noted that the Veteran did not have surgical repair of the knee for patellar instability. He reported that the Veteran was a retired construction worker, but he also noted that he had lost from 0-1 week of work time in the last 12 months due to difficulty walking, standing, bending, lifting, stair climbing due to his right and left knee disabilities. 

A June 2021 VA outpatient record notes that the Veteran had left knee osteoarthritis and was status post left knee arthroscopy times three with the last procedure in 2003. The Veteran was assessed as having moderate pain with exertion and was instructed to avoid heavy, high impact, and keep light aerobic activity.

Analysis

It should be noted at the outset that during the pendency of this appeal, in May 2021, the agency of original jurisdiction (AOJ) changed the diagnostic code for the Veteran's left knee disability, characterized as left knee strain with instability and osteoarthritis, from hyphenated Codes 5003-5260 for LOM of the left knee on flexion to Code 5257 for instability of the left knee, effective April 22, 2021. A hyphenated code may be used to identify the proper evaluation of a disability or a residual from disease. The first code of a hyphenated code identifies the diagnosed disease or condition. The second code of a hyphenated code identifies the criteria in the Schedule for Rating Disabilities used to evaluate the disability. The above notwithstanding, the law permits simultaneous ratings under the limitation of motion codes (Codes 5260 and 5261) and Code 5257 for recurrent subluxation and instability, if applicable. See VAOPGCPREC 9-98 (1998). Accordingly, consideration will be given to entitlement to ratings under both codes simultaneously. 

1. Prior to April 22, 2021

For the period prior to April 22, 2021, the Veteran has been in receipt of a 10 percent rating for noncompensable LOM on flexion due to pain. 38 C.F.R. 4.71a, Code 5003; Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).

As noted, the Veteran demonstrated limitation of flexion to 115 degrees at the May 2015 examination and to 110 degrees at the September 2020 examination, with pain. These examination reports do not show additional LOM due to factors such as pain, weakness, fatigability, or incoordination, to include after three repetitions, on repeated use over time or during flare ups. 38 C.F.R. § 4.45; Deluca, supra. Moreover, private treatment records for this period show that range of motion findings on flexion of the left knee ranged from 125 to 120 degrees. These findings do not meet the criteria for a compensable or even a noncompensable, 0 percent, rating under Code 5260. As such, the Board finds that a higher than 10 percent rating for LOM on flexion is not warranted at any time prior to April 22, 2021. 38 C.F.R. §4.71a, Code 5260.

The Board further finds that the Veteran is not entitled to a separate rating for left knee LOM on extension for the period prior to April 22, 2021. This is so since findings for this period do not show limitation of extension to a compensable degree. In this regard, private office notes in March 2015 and July 2016 show extension of the left knee to 5 degrees which approximates a 0 percent rating under Code 5261. Additional office visit findings in December 2017, June 2018, and August 2018, as well as findings on examination in May 2015 and September 2020, show normal extension to 0 degrees. In consideration of these findings, the Board finds that the evidence does not support a separate, compensable rating for LOM on extension under Code 5261. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004). 

With respect to instability, the evidence does not show that a separate rating is warranted for knee instability prior to April 22, 2021. 38 C.F.R. §4.71a, Code 5257. This is in consideration of the May 2015 and September 2020 examination reports both of which note that the Veteran did not have a history of left knee subluxation or instability. In terms of stability testing, the May 2015 VA examiner reported instability testing was normal with no left knee instability. The September 2020 examiner reported that although stability testing was indicated it was not performed due to the risk of further injuring the Veteran. In consideration of these findings and the lack of any contrary findings in the pertinent treatment records, the Board finds that a separate rating for left knee instability is not warranted at any time prior to April 22, 2021. 38 C.F.R. §4.71a, Code 5257 (pre and post February 7, 2021).

Consideration has been given to the Veteran's testimony regarding his left knee symptoms and his opinion that he is entitled to a higher rating for this disability. However, his opinion is outweighed by the objective medical findings discussed above and on VA's Schedule for rating disorders of the musculoskeletal system.

For the foregoing reasons, a preponderance of the evidence is against a rating greater than 10 percent for LOM on flexion of the Veteran's left knee and against separate ratings for LOM on extension of the left knee and for left knee instability, for the period prior to April 22, 2021. 38 C.F.R. §4.71a, Codes 5257, 5260, 5261. As such, the benefit of the doubt rule if not for application and the claim to this extent is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

2. From April 22, 2021

The Veteran is rated 20 percent disabled for LOM on extension of the left knee from April 22, 2021. 38 C.F.R. §4.71a, Code 5261. This is based on findings at the April 2021 VA examination showing initial extension limited to 5 degrees and increasing to 15 degrees during periods of flare ups. These findings include consideration for functional loss and are consistent with the present 20 percent rating. They do not more closely approximate the criteria for a higher 30 percent rating which requires limitation of extension to 20 degrees. Accordingly, a higher that 20 percent rating under Code 5261 for LOM on extension is not warranted. 38 C.F.R. §4.71a.

As noted above, simultaneous ratings for LOM on flexion and on extension are permitted in cases where the evidence supports compensable ratings under both codes. VAOPGCPREC 9-2004 (2004). However, in this case, the evidence does not support a compensable rating under the criteria of Code 5260 for LOM on flexion. The rating was initially assigned based on painful, noncompensable range of motion and recent findings similarly show painful, noncompensable range of motion. 38 C.F.R. 4.71a, Code 5003; Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); see also VAOPCGPREC 9-98 (Aug. 14, 1998). The April 2021 examination report shows that the Veteran's demonstrated flexion ranged from 135 to 125 degrees and included consideration of additional loss due to factors such as pain, fatigability, incoordination, and weakness after repetitive use and during flare ups. Thus, in consideration of these findings and a lack of any contrary findings in the pertinent treatment records, a separate rating under Code 5260 for LOM on flexion from April 22, 2021, is not warranted. 

Regarding instability, the Veteran is presently rated at 20 percent for instability of the left knee under the revised version of Code 5257. After reviewing the pertinent evidence, the Board finds that it does not more nearly approximate severe left knee instability under the old version of Code 5257, or under the revised Code 5257 for an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribing both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. The Veteran described his left knee instability at the April 2021 examination as a "catching and popping" and the report shows that he has been prescribed a brace to ambulate. He has not been prescribed a cane, walker, or crutches to aid in ambulation. Moreover, this report shows that he does not have a ligament tear and did not undergo surgical repair for patellar instability. In consideration of these findings and the lack of any contrary findings in the pertinent treatment records, the evidence is most consistent with the Veteran's present 20 percent rating and does not warrant a higher rating under the old or revised version of Code 5257. 

While the Veteran is competent to give evidence about what he observes or experiences including his symptoms, see, e.g., Layno v. Brown, 6 Vet. App. 465 (1994), his belief that he is entitled to higher ratings than that assigned for his left knee disability from April 22, 2021, is outweighed by the objective medical findings discussed above and on VA's Schedule for Rating Musculoskeletal Disorders.

As the preponderance of the evidence is against ratings greater than 20 percent for left knee limitation of motion on extension and for instability from April 22, 2021, the benefit-of-the-doubt doctrine is not for application and the claims for higher ratings are denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 49.

B. Hypertension

The Veteran's hypertension was evaluated under Diagnostic Code 7101. 38 C.F.R. § 4.104. Under Diagnostic Code 7101, a 10 percent rating is assigned for diastolic pressure predominately 100 or more, or; systolic pressure predominantly 160 or more, or is the minimum rating for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. Id. 

The Veteran's hypertension was evaluated at a VA examination in May 2015. The examiner reported that the Veteran required continuous medication for control and that he did not have a history of diastolic blood pressure predominantly 100 or more. Blood pressure at the examination revealed readings of 124 systolic over 80 diastolic, 116 systolic over 80 diastolic, and 123 systolic over 82 diastolic. The averages for these readings show 121 systolic over 81 diastolic. The examiner reported that the Veteran had been working in construction for seven years and that his hypertension did not impact his work. 

Private office visit notes from 2015 to 2019 show a few elevated systolic readings between 140 and 145, but most of the Veteran's blood pressure readings remained well below the target goal of less than 140 for systolic and 100 for diastolic. 

At a subsequent LHI examination in April 2021, the examiner reported that the Veteran required continuous medication for control and he did not have a history of diastolic blood pressure predominantly 100 or more. Blood pressure readings at the examination revealed blood pressure readings of 120 systolic over 80 diastolic, 110 systolic over 80 diastolic, and 115 systolic over 85 diastolic. These readings average 115 systolic over 82 diastolic. The examiner reported that the Veteran was a retired construction worker and that his elevated blood pressure readings caused migraines which affected his productivity. 

Neither findings recorded on the examination reports nor as noted on pertinent treatment records support the criteria for a compensable rating. See 38 C.F.R. § 4.104, Code 7101. That is, they do not reveal diastolic pressure predominately 100 or more, or; systolic pressure predominantly 160 or more; or the minimum rating for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 

The Veteran's opinion that he is entitled to a compensable rating for his hypertension has been considered. However, his opinion is outweighed by the objective medical findings discussed above and on VA's Schedule for rating disorders of the cardiovascular system.

For the foregoing reasons, the preponderance of the evidence does not support a compensable rating for the Veteran's hypertension at any point during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine is not for application and the claim is denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 49.

C. GERD

The Veteran's service-connected GERD is rated by analogy to 38 C.F.R. § 4.114, Code 7346, for hiatal hernia. See 38 C.F.R. § 4.20.

Under Code 7346 for hiatal hernia, a 10 percent rating requires two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating requires persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating requires symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptoms combinations productive of severe impairment of health. 38 C.F.R. § 4.114.

In every instance where the schedule does not provide a 0 percent evaluation for a DC, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. §4.31.

1. Compensable Rating Prior to April 22, 2021

The Veteran reported at a May 2015 VA examination that he takes medication (ranitidine) twice a day and his symptoms require him to eat smaller meals. Signs and symptoms include pyrosis, reflux, sleep disturbance due to reflux four or more times a year, and nausea four or more times a year. There were no other pertinent physical findings found. 

With few exceptions, most of the private treatment records from May 2015 to September 2019 show that the Veteran did not have gastrointestinal symptoms. Such exceptions include a July 2016 record noting that the Veteran had nausea, vomiting and diarrhea the previous month, and an October 2016 record containing the Veteran's complaints of abdominal pain and nausea. 

The Veteran testified in December 2019 that he has GERD symptoms 90 percent of the time after meals and he takes medication for his symptoms. He reported experiencing regurgitation but denied vomiting blood. He also said that he had lost weight in the past but has recently gained 30 pounds. He reported having chest pain and nausea and he said that he is sometimes awakened at night by his symptoms. He reported taking Pepto Bismol and tums. He added that his oncologist prescribed iron pills. 

Reviewing the evidence in its entirety, the Board finds that the Veteran's disability picture more nearly approximates the criteria for a 10 percent rating requiring two or more of the symptoms for a 30 percent evaluation of less severity. As noted, findings at the May 2015 VA examination include pyrosis and reflux and these findings are consistent with the Veteran's December 2019 hearing testimony. 

A higher rating of 30 percent or higher is not warranted since the evidence does not show the Veteran has had persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation that is accompanied by substernal, arm, or shoulder pain productive of considerable impairment of health. While the Board has considered the Veteran's hearing testimony in December 2019 that he has had chest pain, the evidence does not show that he has substernal, arm or shoulder pain related to GERD. In addition to pyrosis and reflux, the May 2015 examination report shows that the Veteran had sleep disturbance and nausea, but no other physical findings to include dysphagia or substernal, arm, or shoulder pain. Moreover, the pertinent treatment records for this period show that for the most part the Veteran was not found to have gastrointestinal symptoms with a few exceptions that do not include dysphagia or substernal, arm or shoulder pain. In short, his GERD symptoms for the period prior to April 22, 2021, are not productive of considerable impairment of health. For these reasons, the Veteran is entitled to a 10 percent rating, but no higher, for GERD for the period prior to April 22, 2021.

2. Rating Greater than 10 Percent from April 22, 2021

The Veteran reported at an April 2021 VA examination that he has daily gastroesophageal symptoms after he eats. He described having a "fire" in his throat with nausea and vomiting three to four times a day. He described the vomiting as "acid". He also reported difficulty sleeping every night due to reflux symptoms and he said that he has chest pain due to the reflux. He was noted to be taking prescribed medication as well as Tums and Pepto Bismol. Signs and symptoms of the disability were noted to include persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, and substernal pain. He had no other physical findings related to the disability.

The examination report above supports an increased rating of 30 percent for under Code 7346. 38 C.F.R. §4.114. That is, it shows that he experiences persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal pain, productive of considerable impairment of health. Accordingly, an increased rating to 30 percent, effective April 22, 2021, is granted. 

Consideration has also been given to the criteria for a 60 percent rating. However, the April 2021 examination report shows that the Veteran did not have hematemesis or material weight loss. It also shows that he did not have melena with moderate anemia. Moreover, the evidence does not show that his symptom combinations more closely approximate severe impairment of health. Accordingly, a higher than 30 percent rating under Code 7346 for the period from April 22, 2021, is not warranted. 38 C.F.R. § 4.114. 

 

 

Kristin Haddock

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Shawkey, 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.