Citation Nr: 21007613 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 15-23 770 DATE: February 10, 2021 ORDER Entitlement to an initial rating higher than 10 percent for gastroesophageal reflux disease (GERD) prior to December 3, 2019 is denied. Entitlement to a 30 percent rating for GERD from December 3, 2019 is granted. FINDINGS OF FACT 1. For the period prior to December 3, 2019 the Veteran’s GERD was productive of recurrent epigastric distress with regurgitation and reflux without considerable or severe impairment of health. 2. Affording the Veteran the benefit of the doubt, his GERD has been manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal pain, productive of considerable impairment of health from December 3, 2019. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating higher than 10 percent for GERD prior to December 3, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code (Code) 7346. 2. The criteria for a 30 percent rating for GERD from December 3, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.114, Code 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1993 to January 2000. This matter was previously before the Board of Veterans’ Appeals (Board) in July 2019 and remanded to a Department of Veterans Affairs (VA) Regional Office (RO). 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; 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. Generally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s service-connected GERD is currently assigned an initial 10 percent rating under 38 C.F.R. § 4.114, Code 7346. Under this section, a 10 percent rating is assigned when there are two or more of the symptoms for the 30 percent rating of less severity. A 30 percent rating is assigned 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 rating is assigned 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. Prior to December 3, 2019 The record reflects that prior to December 3, 2019 the Veteran’s GERD was productive of symptoms of regurgitation and reflux without considerable or severe impairment of health. Specifically, during a November 2018 esophageal conditions Disability Benefits Questionnaire (DBQ), the Veteran reported signs or symptoms of persistent recurrent epigastric distress with recurrence 4 or more times a year that last 1 to 9 days, regurgitation recurring 2 times a year and lasting less than one day, and reflux recurring 4 or more times per year. He had sleep disturbances caused by esophageal reflux with recurrence 4 or more times per year, lasting 1 to 9 days. He had mild nausea, and transient vomiting (with a frequency of 2 times per year, lasting less than 1 day). He did not have dysphagia, pyrosis, an esophageal stricture, spasm of esophagus or an acquired diverticulum of the esophagus. There were no complaints of substernal arm or shoulder pain. The examiner indicated that the Veteran’s GERD did impact his ability to work. Thus, the November 2018 DBQ reflect symptoms of regurgitation and reflux without considerable impairment of health. The record does not reflect that the Veteran has required more than conservative treatment for his GERD. He uses prescribed medications to treat the symptoms related to GERD. While the records show that the Veteran's symptoms for the period prior to December 3, 2019 were productive of persistently recurrent epigastric distress with regurgitation and reflux, his symptoms were not productive of dysphagia, or pyrosis accompanied by substernal or arm or shoulder pain to warranted the next higher 30 percent rating. These symptoms most nearly approximate the criteria for the 10 percent rating prior to December 3, 2019 the criteria for an initial rating higher than 10 percent for GERD have not been met prior to December 3, 2019. Accordingly, as the preponderance of the evidence is against the assignment of a higher initial rating for GERD prior to December 3, 2019, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b). From December 3, 2019 On December 2019 VA esophageal conditions examination, the Veteran reported that the medication he is prescribed controls his symptoms sometimes, but he is symptomatic about 4 times a week. He stated his symptoms are worse at night but occur often during the day. He avoids spicy foods, tomato-based foods and acidic juices, and fried and greasy foods. He had signs and symptoms of pyrosis, reflux, regurgitation, and substernal pain. He experiences sleep disturbance and nausea caused by esophageal reflux 4 or more time per year with the average duration of episodes of symptoms less than one day. He did not have an esophageal stricture, spasm of esophagus, or an acquired diverticulum of the esophagus, nor did he have any other pertinent physical findings, complications, conditions, signs, or symptoms related to his service-connected GERD. The diagnosis was GERD. The examiner noted that the Veteran’s GERD did not impact his ability to work. The Veteran and his wife proffered statements on the severity of the Veteran’s GERD symptoms. Specifically, in an August 2020 statement, the Veteran’s wife noted the Veteran’s symptoms had become progressively worse, and he has had to switch to more powerful drugs, have additional drugs prescribed, and sometimes double the prescribed dosage due to repeated bouts of heartburn. He experiences nausea before eating, and many times he wakes up and run to the bathroom to regurgitate. Afterwards, he complains that his chest hurts and burns. Such episodes disrupt his nerves and sleep. She stated further that the Veteran has trouble swallowing food and medications. He also complains of discomfort and shoulder pain. In the Veteran’s August 2020 statement, he noted that because of his GERD he is unable to rest during the day and at night due to regurgitation and extreme heartburn, which on average occurs 3 times a week. He stated he often experiences vomiting, extreme heartburn, and pain radiating to his shoulders. He noted that there are instances when he is awakened from sleep and unable to catch his breath due to regurgitation and heartburn. He stated that his doctor switched his medications and prescribed Zantac and Nexium after he disclosed to the doctor that he was doubling the Nexium dosage. On December 2020 VA-contract esophageal conditions examination, the Veteran reported that his GERD had been progressively getting worse. He stated that he used to take Nexium once a day, but it was increased to twice a day. He has a burning sensation in his chest that wakes him up, and he has begun to experience a burning sensation in his chest during the day. He has episodes of regurgitation and vomiting. He has current symptoms of acid reflux, regurgitation, chest pain, and vomiting. He also experienced signs or symptoms of persistently recurrent epigastric distress, and pyrosis. His treatment plan includes taking continuous medication for his GERD. He experiences recurrent sleep disturbances and episodes of nausea and vomiting caused by GERD four or more times per year. The diagnosis was GERD. The GERD impact his ability to work in that he lost one week of work time in the last 12 months due to having difficulty sleeping. Resolving all doubt in the Veteran’s favor, the Board finds that his service-connected GERD symptoms are productive of considerable impairment of health. As such, the criteria for a 30 percent rating for GERD have been met from December 3, 2019. The record, however, does not reflect, and the Veteran has not contended, that he has experienced material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health due to his GERD to warrant the maximum rating of 60 percent under Code 7346 for the period from December 3, 2019. As such, a higher rating of 60 percent is not warranted in this case. Neither the Veteran nor his representative has raised any other issues with regard to the rating for the service-connected GERD, nor have any other such issues been reasonably raised by the record. Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). Moreover, even though the record indicates the Veteran’s GERD impacts his ability to work, the issue of total individual unemployability due to his service-connected GERD has not been raised by the Veteran or the record. Notably, the Veteran related he lost one week of work time in the last 12 months due to his GERD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Young, 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.