Citation Nr: 21073874 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 17-25 807 DATE: December 13, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is denied. Entitlement to an initial compensable rating for impairment of taste and dry mouth is denied. FINDINGS OF FACT 1. The Veteran's service-connected GERD is manifested by symptoms of persistently recurrent epigastric distress, pyrosis, reflux, and regurgitation; there is no evidence of symptoms of such severity as to cause considerable impairment of health. 2. The most probative evidence establishes that the Veteran does not experience a complete loss of taste. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent for service-connected GERD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, DC 7346. 2. The criteria for entitlement to an initial compensable rating for service-connected impairment of taste and dry mouth, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.87a, DC 6276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from June 1965 to June 1968, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, awarded entitlement to service connection for GERD and assigned an initial 10 percent rating, effective May 31, 2007, and for impairment of taste and dry mouth and assigned an initial noncompensable rating, effective May 31, 2007. The claim was most recently before the Board in June 2019 when it was remanded for further development. There has been substantial compliance with the remand and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). It is not contended otherwise. Initial Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous...." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. 1. Entitlement to an initial rating in excess of 10 percent for GERD. For the reasons that follow, the Board finds that the preponderance of the evidence is against the award of entitlement to an initial rating in excess of 10 percent for GERD for any portion of the period on appeal. The Veteran's GERD is currently evaluated as 10 percent disabling under 38 C.F.R. § 4.114, Diagnostic Codes 7346. The rating schedule does not provide a specific diagnostic code for GERD. However, the Veteran's symptoms have been rated analogously to a hiatal hernia under Diagnostic Code 7346. See 38 C.F.R. § 4.20. The criteria under Diagnostic Code 7346 are conjunctive, not disjunctive; thus, all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991) (use of the conjunctive and in a statutory provision meant that all the conditions listed in the provision must be met). A single evaluation will be assigned under the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. See 38 C.F.R. § 4.114. Under Diagnostic Code 7346, a 10 percent rating is warranted for disability manifested by two or more of the symptoms for the 30 percent evaluation of less severity. 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. The maximum 60 percent rating 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. 38 C.F.R. § 4.114, DC 7346. The terms severe impairment of health and considerable impairment of health are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. "Considerable" is defined as "large in extent or degree." Merriam-Webster's Collegiate Dictionary 267 (11th ed. 2012). "Severe" is defined as "very painful or harmful." Id. at 1140. In assigning a rating under DC 7346, the Board may not consider the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). For purposes of evaluating conditions in 38 C.F.R. § 4.114, the term substantial weight loss means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term minor weight loss means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. 38 C.F.R. § 4.112. Baseline weight means the average weight for the two-year-period preceding onset of the disease. In a March 2009 letter, the Veteran's wife reported that the Veteran took Nexium twice daily for his acid reflux. The Veteran was afforded an August 2014 VA examination, in which it was noted that he had acid reflux and took the drug Nexium to control the symptoms. He cited difficulty in eating, as without water, he would choke on the food. The Veteran's wife noted that if he does not take the Nexium, he has horrible bouts with acid reflux, indigestion and heartburn. A March 2016 VA Examination showed that the Veteran had chronic and disabling acid reflux that provided a burning sensation from his throat into his esophagus. The Veteran noted that he cannot go a day without Nexium. The examiner noted that the Veteran had frequent throat clearing and non-productive cough related to GERD and that the Veteran would not be able to do any daily activities without Nexium. The Veteran denied having any knowledge to an esophageal Gastro-Duodenal scope or any other GERD related diagnostic studies done. A November 2017 VA Examination revealed that the Veteran has difficulty with his meals and must drink large amounts of water to swallow his food. This process takes him twice as long to eat than others. After a June 2019 Board remand, the Veteran was afforded a contracted esophageal conditions examination in December 2019 to determine the severity of his service-connected GERD. The Veteran cited daily GERD symptoms with eating and drinking, noting that the symptoms had gotten worse over the last 18 months. If he missed a dose of medication, he was more sensitive to certain foods and liquids. Current symptoms were described as daily burning sensation in the throat and stomach. The treatment plan included taking continuous medication, Nexium. Following examination of the Veteran and review of the claims file, the clinician determined that signs and symptoms of GERD included: persistently recurrent epigastric distress, pyrosis, reflux, and regurgitation. There was no dysphagia or substernal, arm, or shoulder pain. There was no sleep disturbance, material weight loss, nausea, vomiting, hematemesis, or melena with moderate anemia associated with the disability. There was also no esophageal stricture, spasm of the esophagus, or acquired diverticulum of the esophagus. Regarding functional impact, the Veteran reported that he had daily multiple symptoms of GERD which were usually controlled when he took his Nexium twice a day. He will wake up with acid reflux sometimes, which is better with a drink of water. After a review of this evidence, the Board finds that the Veteran's disability has consistently manifested with symptomatology consistent with the current initial 10 percent rating assigned under Diagnostic Code 7346 from the date of service connection. As described above, the Veteran's disability is manifested by symptoms of persistently recurrent epigastric distress, pyrosis, reflux, and regurgitation. Significantly, there is no documentation of substernal, arm, or shoulder pain, sleep disturbance, material weight loss, nausea, vomiting, hematemesis, melena with moderate anemia, esophageal stricture, spasm of the esophagus, or acquired diverticulum of the esophagus. The evidence does not suggest that the Veteran's GERD symptoms are productive of considerable impairment of health at any time from the date of service connection. The Veteran's GERD symptoms have not significantly impacted his ability to perform activities of daily living, and the record does not indicate that he refrains from significant activities or employment due solely to his gastroesophageal symptoms. A higher 30 percent rating under DC 7346 is not warranted unless there is persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. There is no evidence that the Veteran had any substernal, arm, or shoulder pain in the record. Private medical records show the Veteran has had numbness and weakness in his arms, however the symptoms were attributed to nerve damage from his cancer treatment. The Veteran has denied any substernal or chest pain. Again, the 30 percent rating criteria under DC 7346 are conjunctive, not disjunctive; thus, all criteria must be met. Melson, supra. With respect to dysphagia, although the December 2019 contracted examiner determined that such was not a manifestation of the Veteran's service-connected GERD, the Veteran has competently reported difficulty swallowing throughout the period on appeal. He is certainly competent to report such symptoms and observations because this requires only personal knowledge as it comes through an individual's senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran in this case is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the appellant in this case, who has not been shown by the evidence of record to have medical training or skills. The Board finds the December 2019 examination report to be of greater probative weight than the Veteran's lay assertions. However, even assuming arguendo that the Veteran indeed experiences dysphagia as part and parcel of his service-connected GERD, an initial rating in excess of 10 percent would still not be warranted because, again, the most probative evidence of record establishes that the Veteran's GERD is not manifested by substernal or arm or shoulder pain, and his GERD is not productive of considerable impairment of health. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to an initial compensable rating for impairment of taste and dry mouth. For the reasons that follow, the Board finds that the most probative evidence establishes that entitlement to an initial compensable rating for impairment of taste and dry mouth is not warranted. The Veteran's impairment of taste and dry mouth is rated under DC 6276, which pertains to impairment of sense of taste. A maximum 10 percent rating is warranted only when there is a complete loss of sense of taste. 38 C.F.R. § 4.87a, DC 6276. In every instance where the schedule does not provide a 0 percent rating for a diagnostic code, a 0 percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. The medical and lay evidence of record throughout the period on appeal establishes that the Veteran has certainly experienced impairment with respect to his sense of taste, but has never experienced complete loss of sense of taste. The Veteran's wife reported that the Veteran had a loss of taste buds in a November 2009 statement, and that many of the Veteran's favorite foods tasted terrible to him. During an August 2014 VA examination, the Veteran described his sense of taste resulting in food tasting, at best bland, and, at worst, terrible. In November 2017, the Veteran reported that his taste buds were impaired and that he was unable to eat most kinds of fish. During an October 2019 VA sinusitis/rhinitis examination, the Veteran reported that he had dry mouth and "no taste buds." During the November 2019 contracted examination, the Veteran reported that he had a decreased taste sensation and that he lost interest in food due to a lack of taste. Following examination of the Veteran and review of the claims file, the contracted examiner determined that the Veteran had partial, not complete, loss of sense of taste. It was noted that the known anatomical or pathological basis for such was squamous cell cancer treatments of radiation and chemotherapy damaged the salivary glands and taste buds. Regarding functional impact, the Veteran explained that he does not enjoy eating and that he experiences dryness of the mouth. The Board has considered the Veteran's contentions and reports of having reduced sense of taste, and these assertions are credible and consistent with the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). While there have been many references to a "loss" of taste in the treatment records, as well as in lay assertions by the Veteran and his wife, simply noting a loss of taste does not automatically denote a "complete" loss of taste, as demonstrated by the VA examination report. Again, as delineated above, the descriptions of the symptoms by the Veteran himself and his wife describe diminished sense of taste and altered tastes of various foods. Therefore, as the preponderance of evidence is against the finding of a "complete" loss of sense of taste, the Board must find an increased compensable rating under DC 6276 is not warranted. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). R. Behlen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Jarman, 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.