Citation Nr: A21020171 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 211119-198860 DATE: December 17, 2021 ORDER Entitlement to an initial rating of 10 percent, but no higher, for service-connected gastroesophageal reflux disorder (GERD), also claimed as hiatal hernia, is granted. FINDING OF FACT For the entirety of the period on appeal, the Veteran's GERD is shown to have been productive of symptoms that include reflux and pyrosis. CONCLUSION OF LAW The criteria for an initial rating of 10 percent, but no more, for GERD have been met for the entirety of the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.114, Diagnostic Code 7399-7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1969 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2021 rating decision by the Department of Veterans Affairs (VA) Regional Office. In a November 2021 VA Form 10182, the Veteran requested direct review of the August 2021 rating decision by the Board under the Appeals Modernization Act (AMA). Under direct review, a Board decision is based on the evidence at the time of the prior decision. The Board cannot hold a hearing or accept additional evidence into the record in its direct review. 38 C.F.R. § 20.301. Accordingly, the Board may consider the evidence of record as of the August 2021 decision. The Board may not consider evidence added to the claims file during a period of time when new evidence was not allowed. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155;38C.F.R. §4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. 1. GERD The Veteran seeks a higher initial rating for his service-connected GERD, which is rated as noncompensable. The rating at issue was assigned pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7399-7346. As GERD is not listed specifically in the Rating Schedule, the use of a hyphenated diagnostic code here indicates that the GERD has been rated as analogous to the evaluation for a hiatal hernia. 38 C.F.R. § 4.20 (providing for rating by analogy). Under Diagnostic Code 7346, a 10 percent disability rating is warranted with two or more of the symptoms for the 30 percent evaluation, though of less severity. A 30 percent disability rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent disability 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. In October 2019, the Veteran underwent his first VA examination for esophageal conditions. Here, the examiner noted a diagnosis of GERD. The Veteran reported taking medication daily and experienced heartburn. The Veteran's symptoms included pyrosis and reflux. See October 2019 VA Esophageal Conditions Disability Benefits Questionnaire (DBQ). In November 2020, the Veteran's private physician provided an opinion. Here, the private physician noted the Veteran reported GERD symptoms including "heartburn, regurgitation, acid reflux, and a feeling of food coming back up into my throat." The Veteran also reported restrictions on his diet, times he can eat, and impact on his sleep. The physician further reported that the Veteran stated that he suffers from vitamin deficiencies due to eating disturbances, tooth enamel erosions, impact on his behavioral and social functions, abdominal pain and stress, abnormal physical anatomical defects, and loss of normal gastrointestinal functions. See November 2020 Private VA Rating Evaluation. The Veteran's most recent VA examination for GERD was in July 2021. Here, the examiner confirmed a diagnosis of GERD. The Veteran's symptoms were noted as reflux. The Veteran reported his symptoms being worse at night and takes medication daily for his GERD, as well as over the counter medication. See July 2021 VA Esophageal Conditions DBQ. Upon review of the record, the Board finds that a 10 percent rating, but no more, is warranted for GERD for the entirety of the appeal period. As detailed above, to warrant the minimum 10 percent rating, GERD must be manifested by at least two of the symptoms listed for the 30 percent rating, although at a lesser severity. During the October 2019 VA examination, it was noted that the Veteran exhibited reflux and pyrosis. As such, the Board finds that the Veteran's symptoms have satisfied the criteria for the minimum rating under Diagnostic Code 7346. That being said, in order to qualify for the higher 30 percent rating, the Veteran's GERD symptoms must be accompanied by substernal or arm or shoulder pain and be productive of considerable impairment of health. This is not shown by the record, including by the November 2020 private physician's report. The Board has considered whether a higher or separate rating is warranted for the Veteran's GERD under any other potentially applicable Diagnostic Code and finds that he is not entitled to a higher or separate rating under any other potentially applicable codes ranging from Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive. It is noted that 38 C.F.R. § 4.113 provides that there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia, and disturbances in nutrition. Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title "Disease of the Digestive System," do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding outlined in § 4.14. Specifically, the Board finds that the Veteran's GERD does not result in symptomatology that is not contemplated by Diagnostic Code 7346 and, consequently, a higher or separate rating is not warranted under any other potentially applicable Diagnostic Code other than those prohibited by regulation. The Board recognizes that the rating criteria for assessing the severity of GERD do not specifically contemplate the use of medication to ameliorate symptoms and that the Veteran has reported the use of medication to treat his symptoms throughout the appeal. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Nevertheless, the Board finds that, even when considering the symptoms the Veteran may experience when not aided by the ameliorative effect of medication, a higher rating is not warranted, as there is no probative evidence indicating that, absent medication, the Veteran would experience considerable or severe impairment of health. Therefore, the Board finds that an initial rating of 10 percent, but no higher, is warranted for the Veteran's service-connected GERD. In reaching this determination, the Board notes that this appeal raises no other issues, including a claim for a total disability rating based upon individual unemployability. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Glaeser, Jennifer 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.