Citation Nr: 21074050 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 12-20 911A DATE: December 14, 2021 ORDER Entitlement to an initial rating of 10 percent for gastroesophageal disease (GERD), prior to November 6, 2017 is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for a left knee disability is remanded. FINDING OF FACT Prior to November 6, 2017, the Veteran's GERD has been manifested by two symptoms for a 30 percent rating, to a lesser severity; persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain productive of considerable impairment of health is not shown. CONCLUSION OF LAW Prior to November 6, 2017, the criteria for a disability rating of 10 percent for service-connected GERD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.20, 4.21, 4.114, Diagnostic Code (Code) 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from October 1987 to September 1998. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision. In February 2015 and August 2017, the matters were remanded for additional development. A June 2018 Board decision denied an initial rating in excess of 10 percent for a left knee disability and denied a compensable rating prior to November 6, 2017 for GERD. In November 2019 the United States Court of Appeals for Veterans Claims (Court) vacated the June 2018 Board decision and remanded the appeal. A September 2020 Board decision denied the matters. In July 2021, the Court vacated and remanded the portion of the September 2020 Board decision which denied an initial compensable rating for GERD prior to November 6, 2017 and denied an initial rating in excess of 10 percent for a left knee disability for compliance with a Joint Motion for Partial Remand (JMPR). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When the appeal is from the initial rating assigned with an award of service connection, the entire period from the initial assignment of the disability rating to the present is to be considered, and "staged" ratings may be assigned based on facts found. See Fenderson v. West, 12 Vet. App. at 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 1. Entitlement to a rating of 10 percent for GERD, prior to November 6, 2017. 38 C.F.R. § 4.1114 provides that ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.20 provides that when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. Gastroesophageal reflux is the "reverse flow of material from stomach to esophagus." Cox v. Brown, 5 Vet. App. 95, 97 (1993). The rating schedule does not provide a specific code for GERD; the rating assigned is by analogy to the criteria for rating hiatal hernia under Code 7346. 38 C.F.R. § 4.20. On review of those criteria, the Board finds the analogy appropriate, as the symptoms and impairment associated with GERD most approximately resemble those in the criteria for rating hiatal hernia under Code 7346 and reflect the predominant disability picture. Under Code 7346, a 60 percent rating is warranted when there are symptoms of pain, vomiting, or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. A 30 percent rating is warranted when there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 10 percent rating is warranted with two or more of the symptoms for the 30 percent rating, of lesser severity. 38 C.F.R. § 4.114. The Veteran contends that an initial and higher rating under Diagnostic Code 7305 for duodenal ulcer is more appropriate. Under this DC, moderately severe symptoms of a duodenal ulcer but less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year warrant a 40 percent rating. Moderate symptoms with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations warrant a 20 percent rating. Mild symptoms with recurring symptoms once or twice yearly warrant a 10 percent rating. Where the schedule does not provide a 0 percent rating under a specific diagnostic code, a 0 percent rating will be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. The RO received the Veteran's claim for service connection for chronic non-cardiac chest pain in February 2012. An April 2012 Gulf War general medical examination noted esophageal disorders (GERD and hiatal hernia). An April 2012 esophageal conditions examination noted a diagnosis of GERD. The examiner indicated that the Veteran's chest pain was caused by a digestive system disorder which was an esophageal abnormality and not a stomach or duodenal condition. The examiner noted that GERD was diagnosed in April 1996 based on an upper gastrointestinal endoscopy that showed mild symptoms. By history it was noted that the Veteran reported left sided discomfort occurring at least twelve times a year. He reported experiencing persistent intermittent symptoms since service. The Veteran reported he had medication but did not take it because symptoms persisted with medication. However, it was noted that the Veteran's treatment plan included taking medication. The examiner indicated in the report that the Veteran did not have any characteristic symptoms although the Veteran's report of substernal pain was acknowledged since service and to the time of the examination. On April 2015 esophageal conditions examination, the diagnosis was GERD. Symptoms of pyrosis was noted. Additionally, the clinician noted the Veteran's atypical chest pain was caused by GERD. On November 6, 2017 esophageal conditions examination, the diagnosis was GERD. The Veteran reported about six episodes per year of chest/upper neck pain with an unknown trigger. He reported self-treatment with over-the-counter Gaviscon and Tums. Signs and symptoms of reflux and substernal pain were noted. Upon review of the record, the Board finds that it is reasonably shown by evidence in the record that two symptoms of the criteria for a 30 percent rating under Code 7346 but to a lesser degree were shown prior to November 6, 2017. The Board finds that the symptoms of pyrosis and substernal pain were present prior to the Veteran's examination on November 6, 2017, and that the Veteran's symptoms therefore best approximate the criteria of a 10 percent rating under Code 7346 prior to that date. The symptoms were not shown to be productive of a considerable impairment of health as there was no report or evidence of weight loss or nutritional deficits or any other systemic degradation. Accordingly, the Board finds that a 10 percent rating for GERD is warranted prior to November 6, 2017. The Board notes the Veteran's argument for consideration of GERD under Code 7305. In his brief to the Court in 2019, the Veteran cited only the DC 7305 criteria of "Mild, with recurring symptoms" with nothing more than a statement that it should be considered but without any supporting reasons. The Veteran did not contend that he had a duodenal ulcer but only that he had similar symptoms. The Veteran was not diagnosed with a duodenal or stomach ulcer. The diagnosis was based on an endoscopic procedure that did not detect ulcer or any abnormality of the stomach below the esophagus. As noted in the Court's definition, the diagnosis of GERD is consistent with the Veteran's reported symptoms of pyrosis and substernal chest pain, specifically cited in DC 7346. Therefore, this contention warrants little weight as it is insufficiently articulated and not consistent with the evidence. The Board reviewed all other digestive system diagnostic codes and finds that the reported symptoms of pyrosis and substernal pain are consistent with the definition and diagnosis of GERD and the physical nature of the disability, and that the predominant picture is best described in Diagnostic Code 7346. However, as the above assigns a rating of 10 percent for GERD under Code 7346 prior to November 6, 2017, a separate rating under Code 7305 would amount to pyramiding. See 38 C.F.R. § 4.14. REASONS FOR REMAND Entitlement to an initial rating in excess of 10 percent for a left knee disability. The Board finds that further development of the record is necessary for proper adjudication of this claim. Initially, the Board notes that the Veteran's treatment records have not been updated in several years. Accordingly, they must be sought in order to adequately evaluate the Veteran's claim. Additionally, the Board notes that the Veteran was last examined in November 2017. The Veteran has alleged that his left knee disability is worsening. Accordingly, an updated examination is necessary. The matter is REMANDED for the following action: 1. Ask the Veteran to identify all providers of his treatment of his left knee disability and submit authorizations for VA to obtain records from any private providers identified. Secure complete clinical records (any not already associated with the claims file) of any evaluations and treatment the Veteran has received for his left knee (to include up to date VA treatment records). 2. Following the above development, arrange for an orthopedic examination of the Veteran to assess the severity of his service-connected left knee disability. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Any tests or studies indicated should be completed. The examiner must be provided the criteria for rating knee disabilities. The findings must include: (a.) Is there arthritis of the knee? (b.) Complete range of motion studies (to include any limitations due to pain, on use, during periods of exacerbation, etc.). Record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and non-weight-bearing. (c.) Is there subluxation or instability (and, if so, the degree)? (d.) Is the knee ankylosed (and if so, in what position)? (e.) Is there dislocated semilunar cartilage (if so with frequent episodes of locking, pain and effusion in the joint)? impairment of the tibia and fibula (and if so, the degree of severity)? genu recurvatum? (f.) Elicit from the Veteran whether there are flare-ups of the knee disability (and if so the duration and frequency of the flare-ups) and a description of any reported. Comment whether the description is consistent with the clinical presentation of the disability on examination and by the record. The clinician must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Staskowski, 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.