Citation Nr: 21013279 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-13 456 DATE: March 9, 2021 ORDER Entitlement to a rating in excess of 30 percent for GERD is denied. FINDING OF FACT GERD has not more nearly approximated symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for GERD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.27, 4.113, 4.114, Diagnostic Code (DC) 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1991 to June 1995 and from August 2004 to February 2006. In February 2018, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In August 2018, the Board denied the claim for an increased rating for GERD. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims. In December 2019, the Veteran and the Secretary of VA (parties) filed a Joint Motion for Partial Remand (JMPR) with respect to the part of August 2018 Board decision which denied the entitlement to a disability rating in excess of 30 percent for GERD with a hiatal hernia to vacate and remand the claim back to the Board, which was granted by the Court. The Court granted the JPMR because the Board failed to address whether the disability picture more nearly approximates the criteria for a 60 percent rating. In June 2020, the case returned to the Board, and the Board remanded the claim for private and VA treatment records and a new VA examination. The Board finds there was substantial compliance with this development. The claim returns to the Board for further appellate review. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects the Veteran’s ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran’s symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.§ 1155; 38 C.F.R.§ 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R.§ 4.3. In determining the severity of a disability, if the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Entitlement to a rating in excess of 30 percent for GERD from October 9, 2008. The Veteran's GERD is rated under DC 7346 for hiatal hernias. See 38 C.F.R. § 4.114, DC 7346. A 30 percent disability rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal, arm, or shoulder pain, productive of considerable impairment of health. A maximum schedular 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. Id. The Veteran contends he is entitled to the maximum 60 percent rating for GERD because he constantly has pain in his stomach and uncontrollable bowels with diarrhea and constipation. He reported his gastrointestinal doctor told him his GERD was severe. The Veteran contended that GERD has caused him to become anemic, which is evidenced by hemoglobin and hematocrit levels being out of range. The Veteran reported coughing up blood and seeing blood in his stool, and he has a difficult time swallowing food and medicine. He described throwing up food almost daily up to one hour after he has eaten. The Veteran stated he has heartburn all the time, which causes serious pain in his shoulder and arm. He believes all these symptoms equate to a 60 percent rating. The Veteran states that during his January 2015 psychiatric emergency room visit, he did not mention other symptomology because his primary reason for the visit was his mental health. He contends that his chief complaint during the February 18, 2015 visit was severe epigastric distress, the most severe he had experienced to that point. The Veteran’s weight had fluctuated between 218 and 250 pounds between April 2006 and February 2015. The Veteran testified that he is constantly back and forth to doctors about his GERD symptoms. He testified that doctors told him that lab results indicative of anemia are common in Black people. His private doctor has prescribed medications and iron to help build up his blood, but he continues to lose blood via his internal hemorrhoids. The Veteran contends melena and/or hematemesis are symptoms of acute gastrointestinal (GI) bleeding, so it cannot be expected that he would suffer from acute GI bleed while undergoing an examination, but lay reports of blood in stool and coughing up blood must be considered. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of an increased rating in excess of 30 percent for GERD, as the Veteran’s symptoms do not more closely approximate the next higher rating. The reasons follow. The evidence shows that from approximately October 2007, one year prior to the date of the claim for an increased rating, the Veteran’s GERD symptoms did not result in pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health to warrant a 60 percent rating. At worst, the Veteran’s GERD is manifested by gastritis, pain, occasional vomiting, and mild anemia without melena. For example, a December 2007 VA treatment record showed the Veteran reported chest pain due to reflux two or three weeks earlier, but the GI system was clinically evaluated as normal, which included a lack of symptoms such as nausea, vomiting, indigestion, bloody/black stool, diarrhea, and constipation. The February 2008 VA examiner documented the Veteran’s report of GERD symptoms as a burning sensation in the substernal chest and pain in the upper chest, shoulder, and arm. The Veteran reported awakening each morning with a substance in the back of his throat, which he sometimes had to vomit up through his nose and mouth. The Veteran reported occasional constipation and diarrhea and difficulty swallowing especially liquids that seemed to get stuck in his throat, but the Veteran denied seeing blood in his stool. The Veteran reported a weight gain of 40 pounds over the past year due to his psychiatric medications. In addition to his prescribed medicine, he reported taking Pepto Bismol and Alka Seltzer and drinking Sprite and Coke, which sometimes helped him burp, and burping relieves the pain. The Board notes that only two months before this VA examination, the Veteran was found to have a clinically normal GI system lacking most of the symptoms the Veteran reported in February 2008; therefore, these symptoms are, at worst, a relatively new onset rather than indicative a severe impairment of health. During the February 2008 VA examination, the Veteran reported that initially he was treated with Ranitidine, which was ineffective, and then switched to Omeprazole, 20 milligrams twice daily, which had been effective, but he experienced break through symptoms two to three times a week. The examiner documented that about one month prior to the examination, there was some indication that the Veteran had some anemia that was being evaluated. However, a June 2008 VA treatment record documented the anemia was resolved with a notation that a complete blood count was unremarkable in February 2008. On the October 2008 Social Security Administration (SSA) Disability Report Form, while the Veteran included “acid reflux” as one of the disabilities that limited his ability to work, when he was asked, “How do your illness, injuries, or conditions limit your ability to work,” the Veteran wrote, “I am unable to work due to not being able to focus, concentrate, paranoid[]al problems; impulsive, violent behavior; suicidal indignations.” This is consistent with what the SSA employee wrote, which was, “The claimant had difficulty concentrating, in fact he initially only mentioned that his condition was PTSD and as the interview progressed, he noted the othe[r] conditions he had.” When the Veteran’s wife completed a function report for SSA, she wrote that the Veteran was unable to work due to his PTSD and depression. The Veteran submitted pages of typed statements to SSA, which described his psychiatric symptoms and their severity. Within these statements, he was not documenting GERD symptoms as having an impact on him and his ability to work, but rather his psychiatric symptoms. In other words, neither the Veteran nor his wife reported that the Veteran’s GERD symptoms impacted his ability to work, which tends to show that the Veteran’s GERD disability picture was not, at least in their minds, indicative of a disability that was causing severe impairment of health. A February 2009 comprehensive mental status examination performed in connection with the Veteran’s SSA disability application shows that the Veteran reported he had a good appetite but that he was nauseous “at times because of acid reflux.” He also reported to this examiner that he had gained 40 pounds since 2006. An April 2009 VA treatment record documented that an upper GI showed hiatal hernia and reflux, and lab results showed the Veteran was slightly anemic. The April 2009 VA examiner documented the Veteran’s reports of daily indigestion with a burning sensation up into the throat at least once a day, a feeling of food sticking in the throat when he eats, and at least once a week experiencing vomiting and nausea after eating. The Veteran stated that over the prior six months, he had taken Reglan 10 milligrams prior to meals and at bedtime with continued symptoms. He has also tried reflux procedures, such as elevating the head of his bed, which has helped but not stopped symptoms completely. The Veteran takes Pepto Bismol or Alka Seltzer or drinks soda every day in addition to his medication. The Veteran reported intermittent bowel problems with constipation and diarrhea, but he denied melena, hematochezia, and hematemesis. The Veteran lost about five pounds over the previous year, and his weight was documented as 252.2 pounds. He reported chest pain every two to three weeks in the left upper chest up to the armpit, which is persistent for a couple hours and then wears off. A November 2009 private treatment record documented the Veteran reported a positive weight gain or loss and dysphagia, but he was negative for melena, bowel sounds, and other GI symptoms. A July 2010 VA treatment record documented the Veteran was negative for weight change, diarrhea, constipation, and abdominal swelling or pain. A November 2010 private treatment record shows the Veteran’s weight reduced from 236 pounds in November 2009 to 218 pounds in November 2010. As mentioned above, the Veteran’s weight was 252.2 pounds during the April 2009 VA examination. A January 2011 VA treatment record documents the Veteran’s weight as 218 pounds. In a March 2011 correspondence, the Veteran characterized this weight loss as an unexplained 30 pound loss in the two years after his April 2009 VA examination, which he felt is material weight loss from GERD. However, the January 2011 VA treatment record documents the Veteran was encouraged to lose weight due to a body mass index greater than 35. The Veteran was advised to follow a low calorie and low salt diet and to exercise. This treatment record documents a clear explanation for his weight loss over the previous two years, which conflicts with his assertion that the weight loss was “unexplained.” This conflicting statement regarding the reason for his weight loss damages the Veteran’s overall credibility. A November 2010 private treatment record documented the Veteran had hematocrit and hemoglobin values below the normal range. A November 2012 VA treatment record showed slightly low hematocrit and hemoglobin, but the values were improved from November 2010. A January 2015 VA treatment record also showed slightly low hematocrit and hemoglobin. An August 2020 VA laboratory report showed hemoglobin was slightly below the normal range, but hematocrit was reported as normal. A January 2011 VA treatment record shows the Veteran denied nausea, vomiting, diarrhea, constipation, and abdominal swelling or pain. A July 2011 VA treatment record documented the Veteran was seen for complaints of abdominal pain that began the night before with one instance of nausea and vomiting several hours before the appointment. No further nausea or vomiting was documented, and the doctor entered an impression of gastroenteritis with mild leukocytosis. An October 2011 VA treatment record shows the Veteran had no nausea, vomiting, diarrhea, constipation, or abdominal swelling or pain. The record continued to document the Veteran did not experience vomiting in July 2013, January 2016, and August 2016 VA treatment records. The Veteran noted in an April 2014 lay statement that he was treated for helicobacter pylori, but the treatment records document this illness was resolved with his April 2006 treatment. In February 2015, the Veteran was seen in the emergency room for abdominal pain with cramping, but he denied nausea and vomiting. During the May 2015 Gulf War Illness VA examination, the Veteran denied odynophagia, dysphagia, weight loss, and nutritional deficiency. Although the Veteran contends blood in his stool is the result of GERD, he testified in August 2014 before a Decision Review Officer that the blood may be caused by hemorrhoids, and, in February 2018 before the undersigned, he testified that the blood in his stool was a result of hemorrhoids. Although the Veteran noted hemorrhoids are also a part of the digestive system, the Veteran is not service connected for hemorrhoids. A March 2018 VA treatment record documents the examiner wrote that the Veteran endorsed an episode of nausea but denied vomiting as well as diarrhea, abdominal pain, chest pain, melena, and hematochezia. An April 2019 VA treatment record documented that an examiner reviewed various body systems including the GI system, and no GI symptoms were marked with an X, which would have indicated a positive finding. GI symptoms not checked are nausea, vomiting, diarrhea, abdominal pain, hematemesis, and melena. A July 2020 VA treatment record documented the Veteran did not report a new onset of diarrhea, nausea, or vomiting. VA treatment records show a steady weight increase since January 2011 including a recommendation for weight loss in August 2020. This is evidence against material weight loss. The August 2020 VA examiner documented the Veteran experienced persistently recurring epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal pain, vomiting, nausea, and sleep disturbances due to reflux. The examiner did not mark that the Veteran experienced material weight loss, melena with moderate anemia, or hematemesis. The examiner also did not mark that the Veteran’s symptoms combination were productive of severe impairment of health. The examiner documented the Veteran’s anemia was borderline and probably related to blood loss caused by GERD. Anemia that is borderline is not moderate anemia. The Board acknowledges the Veteran has complaints of chest pain, abdominal pain, and gas throughout the appeal period, but he repeatedly denied other GI symptoms while seeking treatment except during VA examinations and hearings. For example, a February 2009 SSA record shows the Veteran reported he would become nauseous “at times.” A November 2009 private record shows that when performing a review of systems, the examiner, when addressing the gastrointestinal system, checked weight gain/loss and dysphagia, but did not check melena, bowel sounds, hernia, or “other.” When seeking treatment at VA in January 2010, the examiner noted a dysphagia screening was performed and wrote, “No problems noted.” In January 2011, he denied nausea, vomiting, and any weight change. The Veteran reported vomiting in July 2011, but denied nausea or pain. In October 2011 and July 2013, he denied vomiting or weight change. When seen in the ER in February 2015, he reported abdominal pain with cramping, but denied nausea and vomiting. In January 2016 and August 2016, the Veteran denied vomiting or weight change. In January 2018, when the examiner performed a review of systems, none of the symptoms listed under the gastrointestinal system were checked, which included diarrhea, weight gain, nausea/vomiting, changes in appetite, and change in bowel pattern. In March 2018, the Veteran reported nausea but denied vomiting, abdominal pain, chest pain, melena, and hematochezia. In April 2019, a review of systems shows that the examiner did not check any of the symptoms listed under the gastrointestinal system, which included nausea, vomiting, diarrhea, abdominal pain, hematemesis, and melena. In October 2019, the examiner documented the Veteran had diarrhea, constipation and heartburn but did not check nausea/vomiting, melena, or hematemesis. In July 2020, the Veteran denied any new onset of diarrhea, nausea, or vomiting. The Veteran’s report of uncontrollable diarrhea is not supported by the treatment records, which consistently documented that the Veteran was not reporting diarrhea. See VA treatment records dated in December 2007, July 2010, January 2011, October 2011, July 2013, February 2015, January 2016, August 2016, January 2018, March 2018, April 2019, and July 2020. These records cover a period of more than 12 years and do not show the Veteran reporting uncontrollable diarrhea. This is not a situation where the record is silent as to whether or not the Veteran is reporting diarrhea, but where examiners have documented that the Veteran is denying diarrhea or the examiner is not checking such symptom when performing a review of systems, which the Board finds is evidence that the Veteran was not reporting diarrhea. The Board also acknowledges the Veteran has visited the emergency room due to abdominal pain and other GI symptoms, but these visits were occasional incidents. The treatment records show anemia, but it is primarily mild anemia, which shows continuous improvement over time. The Board does not find the Veteran’s reports of continuous vomiting and nausea during VA examinations and hearings to be credible, when he consistently denied these symptoms during medical treatment, as statements made during medical treatment tend to be highly reliable. Although the Veteran stated he experienced material weight loss due to GERD, the record shows his weight loss was medically advised and the result of a change in diet and exercise. After this period of weight loss from April 2009 to January 2011, his weight continued to climb until he was again advised to lose weight by medical professionals in August 2020. This is evidence against material weight loss due to GERD, and is evidence that tends to show the Veteran has not been credible at examinations and hearings during his appeal. At the August 2020 VA examination, the Veteran reported sleep disturbance caused by esophageal reflux, which was a symptom he did not report when seeking treatment. In fact, when he reported difficulty sleeping while seeking treatment, it consistently related to his PTSD symptoms, as documented in VA treatment records and SSA records throughout the appeal period. The Board has considered if the Veteran’s GERD disability picture more closely approximates the criteria for a 60 percent rating under 38 C.F.R. § 4.7. The evidence shows the Veteran has experienced pain, gas, mild anemia, and occasional nausea and vomiting throughout the appeal period, which do not approximate a finding of either pain, vomiting, material weight loss and hematemesis or melena with moderate anemia or a symptom combination productive of a severe impairment of health. The symptoms and the severity of such symptoms the Veteran experiences are all contemplated by the 30 percent rating, and the preponderance of the evidence is against the Veteran’s GERD being manifested by pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. The Veteran’s representative made several contentions in March 2020 correspondence. First, the representative notes the Board stated in the August 2018 decision both that the Veteran experienced vomiting and did not experience vomiting when it did not assign a higher rating. In looking at the facts again more closely, the Board has found the Veteran’s reports of continuous vomiting during VA examinations and hearings are not credible because he repeatedly denied vomiting during medical treatment throughout the appeal period The Board has also found that there has not been material weight loss because the weight loss shown was attributable to a weight management plan directed by his doctor due to his body mass index. Thereafter, the Veteran continued to gain weight until he was advised again to lose weight. Therefore, the Board finds the Veteran did not experience vomiting except the noted occasional occurrences discussed above, and he did not experience material weight loss caused by GERD. The representative asserts the Board did not properly apply 38 C.F.R. § 4.21 when it required the Veteran to exhibit all the symptoms listed in the rating criteria for a higher rating. The Veteran’s representative also noted that GERD is rated by analogy under DC 7346, which addresses a hiatal hernia; therefore, it would not be expected that the Veteran would demonstrate all the symptoms listed to warrant a higher rating. Although a disability rated by analogy does not have to show all the symptoms listed under a higher rating to warrant one, it still must show an approximate level of disability that is applicable to the higher rating. In this case, the Veteran would have to show his symptoms rise to a severe impairment of health to warrant a higher rating. The Veteran’s symptoms of pain, gas, mild anemia, and occasional nausea with sporadic incidents of vomiting do not rise to the level of a severe impairment of health. The Veteran did not experience most of the symptoms listed in the 60 percent rating criteria nor did he show a disability picture related to his GERD symptoms that approximated that level of severe impairment. In other words, whether considering the specific symptoms listed in the Diagnostic Code or a disability picture indicative of a severe impairment of health, the Veteran’s disability picture does not more nearly approximate the 60 percent rating. In looking up the definition of hiatal hernia, it states that when one has a hiatal hernia, “it’s easier for the acid to come up. This leaking of acid from your stomach into your esophagus is called GERD.” It then notes that GERD may cause symptoms such as heartburn, problems swallowing, a dry cough, bad breath, nausea and/or vomiting breathing problems, and the wearing away of one’s teeth. https://medlineplus.gov/hiatalhernia.html Thus, the symptoms associated with a hiatal hernia very closely resemble symptoms associated with GERD. Regardless, as stated above, the Board finds that the Veteran’s GERD symptoms, as a whole, do not more closely approximate a disability picture indicative of a severe impairment of health. In sum, the preponderance of the evidence is against a disability rating in excess of 30 percent for GERD. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not applicable, and the Veteran’s claim for an increased rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. McDaniels, 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.