Citation Nr: 21071408 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 03-12 611 DATE: November 30, 2021 ORDER A rating in excess of 10 percent for gastroesophageal reflux disorder (GERD) is denied. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran served on active duty from August 1965 to September 1967. 2. Throughout the appeal period, GERD has been productive of persistent recurrent epigastric distress, pain, nausea, and substernal pain, which has not been productive of considerable impairment of health. 3. The Veteran does not meet the schedular criteria for TDIU. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for GERD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.114, Diagnostic Codes (DCs) 7399-7346 (2021). 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board previously remanded these appeals in September 2017 and later denied them in June 2019. The Veteran appealed to the Veterans Claims Court and a memorandum decision was issued in January 2021. The Board remanded the appeals again in August 2021, and they have now been returned for further appellate action. There has been substantial compliance with the remand directives, and there is no bar to proceeding with the appeal. Stegall v. West, 11 Vet. App. 268, 271. Increased Rating for GERD Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The GERD has been rated as 10 percent disabling under DCs 7399-7346 for the entire period on appeal. There is no diagnostic code specifically applicable to GERD and this disability has been rated by analogy to hiatal hernia under DC 7346. Under DC 7346, a 30 percent rating is warranted for hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of a considerable impairment of health. 38 C.F.R. § 4.114, DC 7346. In May 2013 VA treatment records, the Veteran reported burning epigastric pain radiating to the throat, productive of bloating and gas. Two medications were later recommended to help control GERD. In October 2014, he again reported epigastric tenderness and discomfort for weeks. Later in June 2015 and January 2018, he sought emergency care for burning mouth and throat. At a December 2017 VA examination, the Veteran reported worsening severity, with daily abdominal pain, recurrent burning in the upper abdomen, nausea, regurgitation, heartburn, and daily reflux episodes. The examiner noted evidence of persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, and sleep disturbance, with nausea. The examiner found no evidence of functional impairment which would affect the Veteran's ability to function normally in a work environment. Private treatment records from December 2017 show that gastritis and GERD were treated with twice daily medications, and the privately clinician noted that the Veteran's symptoms were clinically stable. Specifically, Dr. L.M.V. noted symptoms of heartburn and dyspepsia due to superficial non-erosive gastropathy. In March 2019, Dr. L.M.V. noted that the Veteran used Zantac twice a day to treat heartburn and dyspepsia. She noted that despite having a recent exacerbation, his symptoms otherwise remained clinically stable. At a June 2019 VA examination, the Veteran reported that he still had heartburn with reflux and pyrosis. He denied any nausea, vomiting, dysphagia, or regurgitation, but noted that symptoms could be worse after meals. GERD was noted to require medication daily. There was no evidence of substernal, arm, or shoulder pain. Later, at a September 2021 VA examination, the Veteran reported reflux, regurgitation, substernal pain, pyrosis, and nausea. He denied any recent surgeries or hospitalizations with regard to GERD. The examiner found evidence of pyrosis, reflux, regurgitation, nausea, and substernal pain. No other findings or symptoms were noted. Despite the presence of substernal pain, the examiner found that there was no evidence that it was productive of considerable impairment to health. Specifically, the examiner found that it did not preclude the Veteran from obtaining or maintaining employment and identified no functional limitation or impairment as a result of GERD symptoms. The examiner also found that based on a record review and the examination, GERD was mild and stable, and that the Veteran tolerated medication with a good response. The examiner based this finding on the lack of evidence of hospitalizations, hospital visits, symptoms, and surgeries. Additionally, the examiner noted that the Veteran was a reliable historian and that his findings were consistent with symptoms of nausea, reflux, regurgitation, pyrosis and substernal pain, which occurred at least monthly but were not severe, and had remained the same without worsening with treatment. The VA and private treatment records were also reviewed for the relevant time period. While occasional visits to the hospital were noted for exacerbations, there was no evidence of symptomatology which was more severe than noted above or by the September 2021 VA examiner. In this regard, there was no evidence that GERD was productive of a considerable impairment of health. Based on the above, the medical evidence does not support a rating in excess of 10 percent. In this regard, the VA examinations revealed that the Veteran experienced reflux, regurgitation, pyrosis, substernal pain and nausea as a result of GERD; however, the September 2021 VA examination report indicated that the disability had not worsened and the symptoms (reflux) had been maintained with treatment, rather than resulting in a considerable impairment of health. Accordingly, the medical evidence does not support a rating in excess of 10 percent. The Board has considered the Veteran's lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's GERD has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeal is denied. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, service connection is in effect for GERD, rated at 10 percent disabling. The Veteran is not in receipt of service connection for any other disability, and his combined rating is 10 percent. As the Veteran does not have a single disability rated at 60 percent, or two or more disabilities with at least one at 40 percent and a combined rating of 70 percent, he does not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a). Additionally, the record does not suggest that GERD precludes the Veteran from working. In this regard, he worked as an electrician at a government agency for 21 years and the record shows he became unemployed in 2001 as the result of a left knee injury. When filing for Social Security Administration (SSA) benefits, the Veteran did not report GERD or gastritis as a disability which precluded him from, or adversely affected his work, but named only back and leg pain. Additionally, December 2017, June 2019, and September 2021 VA examiners all found that GERD had no functional impact on his ability to work. Further, the issue of entitlement to TDIU on an extraschedular basis was not considered by the AOJ nor raised in the record. Specifically, and as noted, no examiner has found that GERD raises an unusual disability picture or that it precludes him from obtaining or maintaining gainful employment. Thus, the medical evidence does not support the appeal. The Board has considered the lay statements of the Veteran regarding his capacity to work throughout the entire period on appeal. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of symptomatology sufficient to satisfy the requirements of 38 C.F.R. § 4.16(a). Such competent evidence concerning the nature and extent of the Veteran's employability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which his employability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the impact of the Veteran's service-connected disability on his capacity to work and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran's subjective evidence of unemployability, and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yacoub, 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.