Citation Nr: 21021233 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 14-40 930A DATE: April 12, 2021 ORDER An initial compensable disability rating for gastroesophageal reflux disease (GERD) prior September 23, 2014 is denied. A disability rating in excess of 10 percent for GERD from September 23, 2014 to November 9, 2019 is denied. A disability rating of 30 percent, but no higher, for GERD from November 9, 2019 is granted. FINDINGS OF FACT 1. Prior to September 23, 2014, the Veteran’s GERD was not manifested by one recurring attack of typical severe abdominal pain in the past year. 2. From September 23, 2014 to November 9, 2019, the Veteran’s GERD was not manifested by persistently recurrent epigastric distress. 3. From November 9, 2019, the Veteran’s GERD has been manifested by persistent recurrent epigastric distress with dysphasia and regurgitation and substernal pain productive of considerable impairment of health, but no material weight loss and hematemesis, or melena with moderate anemia productive of severe impairment of health. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for GERD prior to September 23, 2014 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, Diagnostic Code 7346. 2. The criteria for a disability rating in excess of 10 percent from September 23, 2014 to November 9, 2019 for GERD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, Diagnostic Code 7346. 3. The criteria for a 30 percent disability rating, but no higher, for GERD from November 9, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1978 to August 1992, January 2003 to January 2006, and from March 2006 to December 2009. This matter come before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is associated with the claims file. This matter was previously before the Board in May 2019 and November 2020 and was remanded for additional development, to include new VA examinations. The Board finds that there has been substantial compliance with prior remand directives and will proceed with adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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). 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. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). Historically, in the May 2010 rating decision on appeal, the RO granted service connection for GERD and assigned an initial noncompensable (0 percent), effective January 1, 2010. The Veteran appealed the assigned rating. During the pendency of the claim, in an October 2014 rating decision, the RO assigned a 10 percent rating for GERD, effective September 23, 2014. Inasmuch as higher ratings are available for GERD and the Veteran has not indicated satisfaction, the claim remains on appeal. See A.B. v. Brown, 6 Vet. App. 35 (1993). Given the nature of the present claim for higher initial ratings, the Board has considered all evidence of severity since January 1, 2010, the effective date for the award of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to higher ratings for GERD The Veteran’s service connected GERD is currently evaluated as noncompensable prior to September 23, 2014 and 10 percent thereafter pursuant to 38 C.F.R. § 4.115a, Diagnostic Code 7399-7346. The Veteran claims entitlement to higher ratings than those presently assigned. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Unlisted disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and 99. Id. The hyphenated diagnostic code assigned for GERD in this case indicates that a miscellaneous digestive disease, under Diagnostic Code 7399, is the service-connected disorder, while the residual condition (to which the Veteran’s disability is rated by analogy) is hiatal hernia, which is evaluated under Diagnostic Code 7346. Under Diagnostic Code 7346, a 10 percent evaluation is warranted when there is at least one recurring attack of typical severe abdominal pain in the past year. A 30 percent evaluation is warranted when there is persistently recurrent epigastric distress with dysphasia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent evaluation contemplates a level of impairment which includes symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, Diagnostic Code 7346. The relevant evidence in this appeal includes December 2009, September 2014, November 2019, January 2021 VA examination reports, and VA treatment records dated from 2002 to 2020. The Board’s review of the VA treatment records does not reveal any information or evidence regarding the severity of the Veteran’s GERD disability and, as such, they will not be discussed in this decision. On December 2009 VA General Medical Examination, the Veteran reported GERD symptoms of frequent heartburn, nausea, lump throat feeling, sensitive teeth, and burning in her stomach daily after eating. She described the severity of her symptoms as a 5 on a 10 point scale, with 10 points being the worse level of discomfort. She reported current medication treatment with no side effects. The Veteran denied dysphagia or substernal or arm pain, hematemesis or melena, or a history of hospitalization or surgery. The report referenced a November 2009 upper gastrointestinal series showing normal bowel gas pattern and normal stomach. An impression of spontaneous and frequent reflux to the level of the neck, marked dysmotility, and tiny sliding type hiatal hernia. In her March 2011 notice of disagreement (NOD), the Veteran reported having GERD symptoms of regurgitation, constant nausea, and vomiting daily. She also reported difficulty swallowing treated with medication. The Veteran was afforded a VA Esophageal Examination in September 2014, she reported symptoms of reflux, substernal pain, and nausea episodes four or more times per year with an average duration of less than one day. She did not have esophageal stricture, spasms, or other pertinent physical findings. No functional impact was found. In her December 2014 substantive appeal, the Veteran reported GERD symptoms of chest, arm, and finger pain. During a January 2019 Board hearing, the Veteran reported a worsening of symptomatology that what was reported on her last VA examination. As such, in May 2019 the Board remanded the claim for a new VA examination. The Veteran was afforded a VA Esophageal Examination in November 2019. She reported a worsening of symptoms described as epigastric pain into the jaw in the morning, nausea, and dental issues treated with continuous medication. The report found symptoms of persistent epigastric distress, dysphagia, reflux, regurgitation, substernal pain, nausea episodes of four or more times per year with a duration of less than one day, and vomiting episodes of four or more times per year with a duration of less than one day. As for functional impact, the examiner noted that the Veteran has epigastric pain during work causing her to take sit down breaks. In November 2020, the Board remanded the claim for a new VA examination to consider the ameliorative effects of the Veteran’s medication on her symptoms. See Jones v. Shinseki, 26 Vet. App. 56 (2012). The Veteran was afforded a VA Esophageal Examination in January 2021. The Veteran reported current symptoms of hoarseness, heart burn, regurgitation, thick substance in her mouth in the morning, chest pain, nausea, jaw pain, sensitive teeth, hernia complications, and stomach pain. The report found the following signs and symptoms: persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal pain, sleep disturbances occurring four or more times per year for a duration of less than one day, nausea occurring four or more times per year for a duration of less than one day, and vomiting occurring four or more times per year for a duration of less than one day. The examiner opined that the Veteran’s esophageal condition has no functional impact. The January 2021 VA examiner acknowledged the Veteran’s reported GERD symptoms and continuous use of medication, and opined that stopping use of such medication may result in symptoms of heartburn, regurgitation or dyspepsia. After considering the totality of the record, the Board finds that from November 9, 2019, date of VA esophageal examination, the Veteran’s GERD has been manifested by symptoms that most closely approximate those contemplated by a 30 percent rating. As noted above, the November 2019 examination report documents that the Veteran experiences persistent recurrent epigastric distress with dysphasia and regurgitation accompanied by substernal pain. These symptoms are explicitly contemplated by the 30 percent rating criteria. Thus, resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s GERD is productive of considerable impairment of health, warranting an increased rating to 30 percent, from November 9, 2019. Based on this grant, the Board has considered whether a compensable disability rating is warranted prior to September 23, 2014; whether a disability rating in excess of 10 percent is warranted from September 23, 2014 to November 9, 2019; and whether a disability rating in excess of 30 percent is warranted from November 9, 2019. The Board finds that a compensable disability rating is not warranted prior to September 23, 2014. The evidence does not demonstrate that the Veteran’s GERD resulted in one recurring attack of typical abdominal pain in the past year. On December 2009 VA examination, the Veteran reported GERD symptoms, but no mention of a recurring attack of typical severe abdominal pain. Similarly, in her NOD, she again reported GERD symptoms regurgitation, nausea, and vomiting, but no recurring attack of typical severe abdominal pain. Therefore, prior to September 23, 2014 a compensable disability rating is not warranted. Next, the Board finds that a disability rating in excess of 10 percent is not warranted from September 23, 2014 to November 9, 2019, because the evidence does not demonstrate persistently recurrent epigastric distress during this period. Although on September 2014 VA examination, the Veteran reported symptoms of reflux, substernal pain, and nausea, there was no indication of persistently recurrent epigastric distress or considerable impairment of health. On the contrary, the examiner noted there was no evidence of esophageal stricture. Thus, during this period, a disability rating in excess of 10 percent is not warranted. The Board has also considered whether a disability rating in excess of 30 percent is warranted from November 9, 2019. As noted, even though the Veteran’s GERD resulted in symptoms of pain and vomiting, there is no evidence of GERD causing material weight loss and hematemesis or melena with moderate anemia. The January 2021 VA examination noted that the Veteran’s GERD impacts her sleep, however, the Veteran has been diagnosed with and is in receipt of compensation for service-connected obstructive sleep apnea (claimed as trouble sleeping) that results in difficulty sleeping. See May 2010 Rating Decision. The record does not indicate that the sleep impairment the Veteran experiences due to her GERD, by itself or in combination with her other GERD symptoms, results in a “severe” impairment of health, warranting an increased rating to 60 percent under Diagnostic Code 7346. The Veteran has not argued otherwise. Here, the Veteran’s disability is consistent with the “considerable impairment of health” noted in the 30 percent rating the Board is assigning from November 9, 2019. Based on the foregoing, an increased disability rating of 30 percent, but no higher, for service-connected GERD from November 9, 2019 is granted. Higher ratings prior to this date are denied. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Baker, 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.