Citation Nr: 21013869 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-38 314 DATE: March 10, 2021 ORDER Prior to August 10, 2013, a compensable rating for service-connected small hiatal hernia and gastroesophageal reflux disease (hereinafter, GERD) is denied. As of August 10, 2013, a rating of 30 percent, but no higher, for service-connected GERD is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Prior to August 10, 2013, the Veteran’s service-connected GERD is not characterized by two or more of the symptoms of dysphagia, pyrosis, regurgitation, or substernal, arm, or shoulder pain. 2. As of August 10, 2013, the Veteran’s service-connected GERD is characterized by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal pain, productive of considerable impairment of health. CONCLUSIONS OF LAW 1. Prior to August 10, 2013, the criteria for a compensable rating for GERD have not been met. 38 U.S.C. §§ 1155, 5103, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.114, Diagnostic Code 7346. 2. As of August 10, 2013, the criteria for a 30 percent rating for GERD have been met. 38 U.S.C. §§ 1155, 5103, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1980 to August 1984. This case is before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In that rating decision, the RO denied a compensable rating for GERD. During the pendency of the appeal, the RO granted an increased rating of 10 percent for the Veteran’s GERD, effective August 28, 2014. Inasmuch as a higher rating is available for such disability, and the Veteran is presumed to seek the maximum available benefit for a disability, his claim for a higher rating remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). In May 2018, the Board remanded the case to the RO for additional development; it now returns for further appellate review. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. Entitlement to a compensable rating prior to August 28, 2014, and a rating in excess of 10 percent thereafter for GERD. The Veteran asserts the severity of his GERD warrants ratings in excess of those currently assigned. The appeal period before the Board stems from the Veteran’s March 30, 2011, informal claim for an increased rating for GERD, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran’s GERD currently is rated as noncompensably disabling prior to August 28, 2014, and ten percent disabling thereafter under 38 C.F.R. § 4.114, Diagnostic Code 7346. Under Diagnostic Code 7346, a 10 percent rating is assigned when there are two or more of the symptoms for the 30 percent evaluation 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; and 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. Treatment records from San Juan VA Medical Center are absent any signs of gastrointestinal issues until May 2011, at which time the Veteran reports abdominal pain and heartburn but no signs of anemia. The Veteran was afforded a VA examination in July 2011. The Veteran reported that his gastrointestinal symptoms had progressively worsened to the point where his heartburn resulted in trouble sleeping. The VA examiner diagnosed small hiatal hernia with associated gastritis, without gastroesophageal reflux. In pertinent part, the VA examiner further found no signs of weight loss, anemia, melena, vomiting, nausea, or pain. While the Board acknowledges the Veteran’s report of heartburn and sleep disturbance, here the relevant medical evidence, to include the Veteran’s own lay statements, does not show that he experienced at least two of the following symptoms: persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, to warrant a compensable rating prior to August 10, 2013. The Board is bound by the rating criteria and in this case, the criteria for a compensable rating are not met prior to August 10, 2013. The Board places great weight on the examiner’s opinion as it is based on a review of the Veteran’s treatment records, current medical findings, and the Veteran’s own lay statements. Conversely, an August 10, 2013, VA treatment record indicates the Veteran experienced epigastric pain with burning sensation and nausea, and additional treatment records dated that same month show he had experienced a three-month history of worsening epigastric abdominal pain, a worrisome 30-pound weight loss, probable iron deficiency indicative of anemia, and epigastric pain with burning sensation and nausea (emphasis added). In October 2013, physicians determined the Veteran was anemic. The Veteran was afforded another VA examination in August 2014. During the examination, the Veteran reported recurrent heartburn, epigastric burning pain, acid reflux, regurgitation, sore throat, and dry cough, which occurred several times per week. He reported no signs of nausea or vomiting, however, but stated that his symptoms were precipitated by certain irritants in his food, such as spicy, fatty, or fried foods. The examiner confirmed diagnoses of GERD and hernia hiatal. The examiner further found the Veteran experienced persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, and sleep disturbance caused by esophageal reflux. Additionally, the Board finds the August 2014 examination results are consistent with the Veteran’s treatment records dated through 2018. However, a July 2018 San Juan VA Medical Center treatment record notes the Veteran had moderate anemia. The Veteran was afforded another VA examination in October 2019. The Veteran reported that he continued to have reflux. The examiner confirmed the GERD diagnosis, and diagnostic testing showed atrophic gastritis and mild non-erosive gastritis. The examiner specifically reported that the Veteran experienced reflux, regurgitation, and sleep disturbance caused by his esophageal reflux. Based on the above, the Board finds the evidence demonstrates symptoms of persistently recurrent epigastric distress, pyrosis, and regurgitation, productive of considerable impairment of health, as shown by material weight loss and moderate anemia, as of August 10, 2013. Such is commensurate with a 30 percent evaluation from August 10, 2013, to the present. See 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7346. The Board also has considered whether a higher evaluation is warranted. In this regard, although the July 2018 VA treatment record reflects the finding of moderate anemia, there is no evidence in the record of vomiting, hematemesis, or melena, or other symptom combinations productive of severe impairment of health consistent to warrant a 60 percent rating. Id. In reaching the foregoing determination, the Board has considered the applicability of the benefit of the doubt doctrine and applied such in the award of the 30 percent rating as of August 10, 2013. However, as the preponderance of the evidence is against the Veteran’s claim for a compensable rating prior to such date, such is inapplicable and that aspect of his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. M. M. Celli Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Ardalan, 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.