Citation Nr: 21009798 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-58 684 DATE: February 23, 2021 ORDER Entitlement to an evaluation of 10 percent, but no higher, for postoperative residuals cholecystectomy with gastroesophageal reflux disease (GERD) is granted. FINDING OF FACT Resolving doubt in the Veteran’s favor, throughout the period on appeal, the Veteran’s GERD has manifested in mild disability. CONCLUSION OF LAW The criteria for a rating of 10 percent for GERD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Codes 7346-7318. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1975 to August 1981. This matter comes before the Board of Veterans’ Appeals (Board) following a September 2019 Board remand. This matter was originally on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded a hearing before the undersigned Veterans Law Judge in June 2019. 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. Where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Reasonable doubt regarding the degree of disability is 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). Entitlement to an evaluation of 10 percent, but no higher for gastroesophageal reflux disease formally claimed as postoperative residuals cholecystectomy with gastroesophageal reflux disease (GERD) The Veteran seeks a higher rating for his GERD disability. The Veteran was originally service connected for cholelithiasis in a June 1982 rating decision, with an evaluation of 10 percent under Diagnostic Codes 7315-7314 from September 1, 1981. An August 1982 rating decision increased the Veteran’s evaluation to 100 percent from June 16, 1982 and decreased his evaluation to 10 percent from August 1, 1982. A non-compensable rating was issued from November 1, 1982 for post-operative residuals of cholecystectomy. The Veteran’s disability was reassigned to Diagnostic Code 7318. In March 2015, the Veteran filed an application for GERD secondary to gallbladder disorder. An August 2015 Gallbladder and Pancreas VA examination report noted the Veteran was diagnosed with chronic cholecystitis, cholecystectomy, and cholelithiasis in 1982. The examiner noted that he did not see a complaint of abdominal pain or GERD, and there was no diagnosis of “PUD” and no history of gallbladder problems. The examiner also noted the Veteran reports that he continues to have problems with heartburn and GERD. In addition, the examiner stated the Veteran was diagnosed with dyspepsia in service, treated with antacids. Although he was eventually found to have cholecystitis/cholelithiasis after discharge, the examiner noted he believed it is at least as likely as not that he had more than one condition in service - reflux/GERD causing dyspepsia, as well as undiagnosed cholelithiasis. The examiner noted the Veteran had no history of GI complaints prior to service, then was treated for dyspepsia, and continued to treat with over the counter antacids after discharge. The normal UGI x-ray done in service does not rule out the existence of GERD as a cause of heartburn and abdominal discomfort. Further, his GERD has worsened over the years, more likely than not due to abdominal obesity. The examiner stated that the Veteran’s GERD is more likely than not a distinct and separate problem which existed in service and continued after service, not secondary to nor related to gallstones or cholecystitis. In an August 2015 Esophageal Conditions VA examination report, the examiner stated the Veteran reported that he continues to have problems with heartburn and GERD, that continued even after his gallbladder was removed, and he took a lot of Tums over the years. The examiner noted, GERD was not officially diagnosed until two years prior, but symptoms are the same as he had in service that he was given antacids for. The Veteran reported he uses omeprazole now with good relief of symptoms. He also stated once a month he takes Tums for indigestion or reflux, usually happening at night which wakes him from sleep. The examiner noted the Veteran’s symptoms as reflux sleep disturbance caused by esophageal reflux and noted the frequency of his symptom recurrence per year was four or more, and his average duration of episodes of symptoms were less than one day. In the appealed October 2015 rating decision, the RO recharacterized the issue as postoperative residuals cholecystectomy with gastroesophageal reflux disease and reassigned the disability to Diagnostic Codes 7346-7318. A July 2018 VA treatment note reports, "GERD: resolved." At the Veteran’s June 2019 Board hearing, he stated that he has heartburn, wakes up regurgitating acid and choking, throws up and his throat burns. The Veteran also stated he experienced heartburn daily, and regurgitation weekly. In an October 2019 VA treatment note, the examiner noted the Veteran has good control of heartburn, GERD, symptoms when he takes omeprazole daily. He had an EGD in 2017 that was “pretty much okay” and normal except for some polyps. In December 2019, the Veteran was afforded a new VA examination for Gallbladder and Pancreas Conditions. The examiner noted the Veteran was diagnosed with chronic cholecystitis and cholelithiasis that resolved with a cholecystectomy. The examiner also noted, the Veteran was diagnosed with cholecystectomy with residual RUQ scar as a result of a 1982 surgery. The examiner noted the Veteran’s separation examination notes "questionable hx peptic ulcer.” The examiner also noted, the Veteran reported his mild-epigastric pain resolved after his gallbladder was removed. In an Esophageal VA examination report, the examiner noted a diagnosis of GERD in 2013, but the Veteran reported that symptoms he attributes to this condition started in service. The Veteran also reported heartburn during the day does not occur but occurs rarely about once every three weeks at night, and he also tastes refluxed acid in his mouth at these times. The Veteran reported when he experiences these episodes, he takes a Tums and the symptoms go away after 15 minutes or so. The Veteran reported he also experiences pyrosis, reflux, and sleep disturbance caused by esophageal reflux. The frequency of symptom recurrence per year is four or more and average duration of episodes of symptoms is less than one day. The examiner noted the Veteran’s GERD is not thought to be a residual of his gallstone/cholecystectomy condition and so both the gallbladder and esophageal template were completed during the examination. Diagnostic Code 7346 provides that a hiatal hernia with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health warrants a 60 percent rating. A hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health warrants a 30 percent rating. Finally, a 10 percent rating is assigned for a hiatal hernia with two or more of the symptoms of the 30 percent rating of less severity. Id. VA regulations further provide 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 by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area, as indicated by the instructions under the title “Diseases of the Digestive System,” do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in 38 C.F.R. § 4.14. 38 C.F.R. § 4.113. As such, 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 rating where the severity of the overall disability warrants elevation. 38 C.F.R. § 4.114. The Board finds that the predominant disability is the GERD as there is no residual functional impairment associated with the cholecystectomy condition. The Board notes the Veteran was diagnosed with GERD in 2013. The August 2015 VA examiner noted the Veteran stated once a month he takes Tums for indigestion or reflux, usually happening at night which wakes him from sleep. The examiner noted the Veteran’s symptoms as reflux sleep disturbance caused by esophageal reflux and noted the frequency of his symptom recurrence per year was four or more, and his average duration of episodes of symptoms were less than one day. As stated above, the June 2019 VA examiner noted the Veteran was diagnosed with chronic cholecystitis and cholelithiasis that resolved with his cholecystectomy. In addition, the examiner reported that the Veteran’s mid-epigastric pain resolved, and the Veteran’s GERD is not thought to be a residual of his gallstone/ cholecystectomy condition. However, the Veteran reported he experiences heartburn, pyrosis, reflux, and sleep disturbance caused by esophageal reflux. The frequency of symptom recurrence per year is four or more and average duration of episodes of symptoms is less than one day. The August 2015 examiner noted the Veteran does not have an esophageal stricture, spasm of esophagus (cardiospasm or achalasia), or an acquired diverticulum of the esophagus. The examiner noted in the Veteran’s Gallbladder and Pancreas examination that the Veteran reported since his gallbladder was removed, he has had no symptoms of gallbladder problems and his bowel movements are regular. The June 2019 VA examiner noted the Veteran’s abdomen upon examination was soft, non-tender to palpation. The record reveals that the Veteran’s GERD has been symptomatic, and thus such is the predominant disability, and resulted in regurgitation, vomiting, and pyrosis. In addition, he uses prescribed medications to treat the symptoms related to GERD. Resolving all doubt in the Veteran’s favor, these symptoms most nearly approximate the criteria for the 10 percent rating. The criteria for a rating higher than 10 percent for GERD have not been met. The Veteran’s treatment records do not indicate he experienced dysphagia, substernal or arm or shoulder pain, material weight loss and hematemesis or melena with moderate anemia. The Veteran’s GERD does not result in considerable or severe impairment of health. The examiner reported the Veteran’s condition does not impact his ability to work. The Veteran reported after his gallbladder was removed, mid-epigastric pain resolved. In this regard, such symptoms have decreased over time, and at no point during the appeal has such resulted in any functional impairment. The severity of the overall disability does not warrant elevation to the next higher rating. Consequently, the Board finds that a rating in excess of 10 percent for the Veteran’s GERD is not warranted. The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran’s service-connected gastrointestinal disability; however, the Board finds that his symptomatology had been stable throughout the appeal period. Therefore, assigning staged ratings is not warranted. Furthermore, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, in regard to the rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Resolving all doubt in the Veteran’s favor, these symptoms most nearly approximate the criteria for the 10 percent rating. The criteria for a rating higher than 10 percent for GERD have not been met. In reaching such decision, the Board has considered the benefit of the doubt doctrine. The preponderance of the evidence is against the Veteran’s claim for a higher rating for his GERD. The benefit of the doubt doctrine has been applied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Daley, 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.