Citation Nr: 21021787 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-52 405 DATE: April 14, 2021 ORDER Prior to June 4, 2018, entitlement to a disability rating of 30 percent, but no higher, for hiatal hernia and gastroesophageal reflux disease (GERD) is granted. From June 4, 2018, entitlement to a disability rating in excess of 30 percent for hiatal hernia and GERD is denied. FINDINGS OF FACT 1. Prior to June 4, 2018, the Veteran’s hiatal hernia and GERD was manifested by recurrent pyrosis, reflux, regurgitation, substernal pain, and difficulty sleeping that resulted in “considerable” impairment of health; but did not cause hematemesis and melena that resulted in anemia, significant weight loss, or “severe” impairment of health. 2. From June 4, 2018, the Veteran’s hiatal hernia and GERD does not cause hematemesis and melena that causes anemia, significant weight loss, or “severe” impairment of health. CONCLUSIONS OF LAW 1. Prior to June 4, 2018, the criteria for entitlement to a disability rating of 30 percent, but no higher, for hiatal hernia and GERD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.113, 4.114 DC 7399-7346. 2. From June 4, 2018, the criteria for entitlement to a disability rating in excess of 30 percent for hiatal hernia and GERD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.113, 4.114 DC 7399-7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1972 to August 1976. In December 2019, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing is associated with the record. The Veteran’s claim was previously remanded for additional development by the Board of Veterans’ Appeals in January 2021. Review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). During the pendency of the appeal, the Veteran was granted a 30 percent rating for hiatal hernia and GERD, effective June 4, 2018 in a February 2021 rating decision. As this grant, however, did not represent a total grant of benefits sought for the entire period on appeal, the Veteran’s claim for a higher initial rating remains pending before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the entire record to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505. In August 2015, the RO continued a 10 percent rating for the Veteran’s service-connected hiatal hernia and GERD. The Veteran appealed arguing that a higher rating of 60 percent was warranted due to his symptoms. The Veteran’s hiatal hernia and GERD is rated under is rated under Diagnostic Code 7399-7346. (The Veteran’s Diagnostic Code was changed during the appeal period from 7346 to 7399-7346.) 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 assigned rating; the additional code is shown after the hyphen. The provisions of 38 C.F.R. § 4.27 provide that unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and 99. 38 C.F.R. § 4.27. Here, the hyphenated diagnostic code indicates that an unlisted gastrointestinal disorder (DC 7399) is rated under the criteria for hiatal hernia (DC 7346). See 38 C.F.R. § 4.20. DC 7346 provides that a 10 percent rating is assigned when there are two or more of the symptoms for the 30 percent rating of less severity. A 30 percent rating is assigned when there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating is assigned when there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health, is rated 60 percent disabling. 38 C.F.R. § 4.114, Diagnostic Code 7346. In July 2015, Veteran was provided a VA examination of his service-connected condition. The examiner noted that the Veteran has a current diagnosis of GERD and hiatal hernia. The Veteran reported symptoms that included: dysphagia, pyrosis (heartburn), reflux, regurgitation, and substernal pain. The Veteran was also reported to be anemic; however, the cause was not reported to be known. In October 2015, the Veteran was seen at the Sepulveda VA Medical Center (VAMC) with complaints of worsening GERD. It was noted that the Veteran was anemic, and he was scheduled for an esophagogastroduodenoscopy (upper GI endoscopy). In April 2016, the Veteran was seen for a follow-up GI Consult at the VAMC. It was noted that the Veteran had received recent treatment for esophageal candidiasis after his upper GI endoscopy showed reactive gastritis. The Veteran reported continued burning chest pain after large meals, which is worse at night. He denied any nausea, vomiting, melena, hematochezia, diarrhea, or constipation. He reported mostly eating two meals per day and that his weight remains stable. He reported continued heavy belching and mild dysphagia without any odynophagia. The examiner noted the Veteran’s continued symptoms of GERD but stated that he did not demonstrate alarming symptoms such as weight loss, melena, or hematochezia. In June 2018, the Veteran was treated at the VAMC for complaints of regurgitation with minimal relief. In December 2018, the Veteran was seen for a follow up GI Consult at the West LA VAMC. The Veteran reported overall improvement in burning after taking new daily medications; however, he reported he still has regurgitation of food and liquid with occasional reflux into mouth and belching which occurs about two times per week (and is worse while lying down). He denied chest pain, dysphagia, odynophagia, abdominal pain, melena, hematochezia, and weight loss. In December 2019, the Veteran provided testimony regarding his condition. The Veteran reported persistent stomach problems, abdominal distress with difficulty swallowing, heartburn, regurgitation, acid build up, nausea, substernal arm pain, and difficulty sleeping. He denied a history of vomiting. In February 2021, the Veteran was provided a VA examination via video telehealth. The Veteran reported that his service-connected GERD is becoming worse. He complained of knot like stomach pain, acid reflux that also interferes with his sleep despite being propped up on pillows, regurgitation, chest pain, and stomach spasms. The examiner stated that the Veteran had symptoms of persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal pain, and sleep disturbance that was productive of considerable impairment of health. The examiner noted that the Veteran would have sleep disturbance due to reflux and nausea four or more times per year lasting 10 days or more and vomiting four or more times per year lasting one to nine days at a time. 1. Prior to June 4, 2018, entitlement to a disability rating of 30 percent, but no higher, for hiatal hernia and GERD 2. From June 4, 2018, entitlement to a disability rating in excess of 30 percent for hiatal hernia and GERD Upon review of the evidence of record, the Board finds that the Veteran’s hiatal hernia and GERD warrant a 30 percent rating throughout the appeal period. While the Veteran has reported worsening of his symptoms, the Board finds that the Veteran’s symptoms have more closely approximated the criteria for a 30 percent rating, including dysphagia, pyrosis, reflux, regurgitation, and substernal pain that results in considerable impairment of health, throughout the period on appeal; as such a uniform rating is warranted. See Hart. The Veteran’s condition is noted to cause persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal pain, and sleep disturbance that was productive of considerable impairment of health by the February 2021 VA examiner. The evidence of record, however, indicates that these symptoms have onset earlier in the appeal period. During the Veteran’s 2015 VA examination, the Veteran is reported to have dysphagia, pyrosis (heartburn), reflux, regurgitation, and substernal pain. The Veteran also reported increased symptoms while lying down in 2016 and difficulty sleeping during his 2019 Board hearing. Resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran’s condition resulted in “considerable impairment of health” and warrants a 30 percent rating throughout the appeal period. 38 C.F.R. §§ 4.3, 4.114, DC 7346. The Board, however, finds that a rating in excess of 30 percent is not warranted throughout the appeal period. A higher 60 percent rating is warranted under DC 7346 when there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of “severe” impairment of health. While the Veteran had anemia during the appeal period, it is not found to be due to hematemesis, melena, or loss of blood due to the Veteran’s GERD or hiatal hernia. During both VA examinations and multiple visits for treatment at the VAMC, the Veteran has denied (and not been documented to have) symptoms of hematemesis and melena. Moreover, a July 2016 treatment note indicates that hematology has indicated that the Veteran’s anemia is likely due to early myelodysplastic syndrome (MDS), rather than his hiatal hernia and GERD. The Veteran also has not demonstrated significant weight loss due to his condition during the appeal period. Additionally, the Board finds probative the findings of the 2021 examiner that reported that the Veteran’s conditions resulted in “considerable” impairment of health rather than “severe” impairment of health.” The Board has considered the Veteran's lay statements regarding the severity of his service-connected hiatal hernia and GERD. He is found competent and credible in his reports of nausea, heartburn, substernal pain, regurgitation, acid reflux, difficulty swallowing, and vomiting. However, neither the Veteran's reports nor the medical evidence shows that his symptomatology is productive of “severe” impairment of health” or is more nearly approximated by the next higher, 60 percent disability rating. Accordingly, the Board finds that the criteria for a rating in excess of 30 percent pursuant to DC 7346 have not been more nearly approximated during the appeal period. 38 C.F.R. §§ 4.3, 4.114, DC 7346. To the extent that the preponderance of the evidence is against the claim for a rating in excess of 30 percent, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3, 4.7. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.M. Johnson, 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.