Citation Nr: 21014917 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 17-04 641 DATE: March 16, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD) for the period from October 27, 2015 to March 5, 2020 is denied. FINDING OF FACT For the period from October 27, 2015 to March 5, 2020, the Veteran’s GERD has been manifested by dysphagia, dyspepsia, abdominal pain, nausea, and was not productive of considerable impairment of health. CONCLUSION OF LAW For the period from October 27, 2015 to March 5, 2020, the criteria for an initial rating in excess of 10 percent for GERD has not been met. U.S.C. §§1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from October 1984 to November 1984. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In an August 2018 decision, the Board granted an initial disability rating for GERD of 10 percent. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC), and the parties agreed to a Joint Motion for Partial Remand (Joint Motion) leaving undisturbed the grant of an initial 10 percent rating but vacating and remanding the portion of the decision which denied a still higher initial rating. By a September 2019 Order, the CAVC granted the Joint Motion. In a December 2019, the Board remanded the appeal for further development. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski,1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 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 do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in §4.14. 38 C.F.R. § 4.113. GERD is not specifically listed in the rating schedule but is evaluated as analogous to hiatal hernia. See 38 C.F.R. § 4.20 (when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous). Hiatal hernia is evaluated as follows: 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; a 30 percent rating requires persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health; a 10 percent rating is assigned for two or more of the symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114, Diagnostic Code 7346. 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 evaluation where the severity of the overall disability warrants such evaluation. 38 C.F.R. § 4.114. Thus, the Veteran’s ratings were assigned under Diagnostic Code 7399-7346, reflecting the predominant disability picture. 38 C.F.R. § 4.114. The Board will nevertheless consider all Diagnostic Codes that may be relevant to his claim. 1. Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD) for the period from October 27, 2015 to March 5, 2020. The Veteran contends he is entitled to an initial rating in excess of 10 percent disabling for his service-connected GERD for the period from October 27, 2015 to March 5, 2020. The Veteran’s service-connected GERD has been rated under Diagnostic Code 7346. The Board finds that during the appeal period the Veteran’s GERD approximated a 10 percent rating. The evidence of records shows that the Veteran has had two or more symptoms, including pain, heartburn, regurgitation with lessened severity, but not symptoms of persistently recurrent epigastric distress productive of considerable impairment of health. The evidence of record reflects the Veteran was afforded a VA esophageal examination in December 2015. The examination report referenced the Veteran’s diagnoses of GERD in 2013 and hiatal hernia in 2014. The Veteran endorsed a history of epigastric burning sensation and “bloating” since 2013. The VA examiner noted that the Veteran underwent an endoscopy in 2014, which identified a hiatal hernia and gastritis. The VA examiner indicated the Veteran is prescribed esomeprazole. The examination report indicated the Veteran has symptoms of reflux and sleep disturbance caused by esophageal reflux. The VA examiner reported that the symptoms occur four or more times per year and for less than a day in duration of each episode. The examination report noted the Veteran does not have an esophageal stricture, spasm of esophagus, or an acquired diverticulum of the esophagus. The VA examiner opined that the Veteran’s esophageal condition does not impact his ability to work. VA outpatient treatment records dated December 2015 through September 2016 indicate that the Veteran endorsed symptoms of dysphagia, dyspepsia, abdominal pain, nausea, melena, and hematochezia. A December 2016 gastrointestinal pathology report reflected that the Veteran had abdominal pain and heartburn. The report indicated that a biopsy of the stomach yielded evidence of antral gastric mucosa with no significant pathologic changes. VA outpatient treatment records dated December 2016 through August 2020 indicate that the Veteran endorsed symptoms of dysphagia, dyspepsia, abdominal pain, nausea, melena, and hematochezia. VA outpatient treatment records note evaluation for a sleep disorder in July 2017 with annual evaluations thereafter. During these evaluations, the Veteran has not reported sleep difficulties due to reflux or any other GERD symptoms. The Veteran was afforded another VA esophageal examination in August 2020. The examination report referenced the Veteran’s diagnoses of GERD and hiatal hernia. The Veteran endorsed a history of epigastric burning sensation and “bloating.” The Veteran reported “upper abdominal distress, regurgitation, bloating sensation, acid reflux. Veteran referred frequent awakenings due to severe symptoms during nights.” The VA examiner noted that the Veteran underwent an endoscopy in 2020, which identified a hiatal hernia, reflux and gastritis. The VA examiner indicated the Veteran is prescribed pantoprazole. The examination report indicated the Veteran has symptoms of reflux, nausea and sleep disturbance caused by esophageal reflux. The VA examiner reported that the symptoms occur four or more times per year and for less than a day in duration of each episode. The examination report indicates symptoms combination productive of severe impairment of health, to include persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, and substernal pain. The examination report noted the Veteran does not have an esophageal stricture, spasm of esophagus, or an acquired diverticulum of the esophagus. The VA examiner opined that the Veteran’s esophageal condition does impact his ability to work due to increased absenteeism. In March 5, 2020, the RO awarded an increased rating of 60 percent disabling for the Veteran’s GERD based on the findings of this examination. Based on a review of the evidence of record the Board finds that a 10 percent rating is warranted for the appeal period. During the period on appeal, the Veteran experienced abdominal pain, heartburn, and regurgitation occurring 4 or more times a year and lasting less than 1 day, which are symptoms directly contemplated by the assigned 10 percent rating. The Board has considered whether the Veteran’s GERD warrants a rating in excess of 10 percent. The Board finds that the December 2015 VA examination was adequate as the examiner thoroughly considered the Veteran’s symptoms and current manifestations of his GERD and is entitled to probative weight. To warrant an increased 30 percent rating, or higher, persistently recurrent epigastric distress with dysphagia, pyrosis and regurgitation accompanied by substernal arm or shoulder pain, productive of considerable impairment of health must be present. There is no indication that the Veteran’s symptoms including dysphagia, melena, hematochezia, regurgitation, and pain have been persistently recurrent and productive of considerable or severe impairment of health. The examiner noted no impact on the Veteran’s ability to work. As such, the evidence of record is against a finding that the Veteran has demonstrated persistently recurrent epigastric distress with symptoms productive of considerable or severe impairment of health. 38 C.F.R. § 38 C.F.R. § 4.114, Diagnostic Code 7346. The Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those listed in the criteria. See Doucette v. Shulkin, 28 Vet. App. 366, 369–70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). There are no other diagnostic codes which would provide for a higher rating given the diagnoses of hiatal hernia and GERD during this period. For all the foregoing reasons, the preponderance of the evidence reflects that the symptoms best approximate a 10 percent rating as to the Veteran’s GERD. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board is sympathetic to the Veteran’s lay statements that his disability is worse than currently evaluated and those statements have been considered. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disability is evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability rating. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Robert N. Scarduzio Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.