Citation Nr: 21024478 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-13 717 DATE: April 22, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for dermatitis, urticaria, and pruritus is remanded. FINDING OF FACT For the entire period on appeal, the Veteran’s service-connected GERD was manifested by the need for daily medication and symptoms of reflux, heartburn, dysphagia, regurgitation, and sleep disturbance that were not productive of considerable impairment of health. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for GERD have not been met at any time during the period on appeal. 38 U.S.C. § 1155; 38 C.F.R. § 4.114, Diagnostic Code 7399-7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 1972 to March 1973 and July 1973 to March 1975. In October 2018, the Veteran presented sworn testimony before the undersigned during a Central Office hearing in Washington, DC. A transcript of the hearing has been associated with the claims file. The Board remanded the Veteran’s claims for increased ratings for GERD and dermatitis, urticaria, and pruritus in February 2019 and August 2020. 1. Entitlement to an initial rating in excess of 10 percent for GERD The Veteran’s service-connected GERD has been initially evaluated as 10 percent disabling under Diagnostic Code 7399-7346. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 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 degrees of disability 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. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, 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. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. 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 rating assigned. 38 C.F.R. § 4.27. Where a veteran has been diagnosed as having a specific condition and the diagnosed condition is not listed in the Ratings Schedule, the diagnosed condition will be evaluated by analogy to closely-related diseases or injuries in which not only the functions affected, but the anatomical localizations and symptomatology, are closely analogous. 38 C.F.R. § 4.20. In this case, the Veteran’s diagnosis of GERD is not specified in the Rating Schedule. Thus, the Veteran has been rated by analogy under Diagnostic Codes 7399-7346. Diagnostic Code 7399 is a general reference to the rating criteria for disabilities of the digestive system. Diagnostic Code 7346 provides the rating criteria for hiatal hernia. These are the appropriate Diagnostic Codes for rating by analogy because they reference both the anatomical localization of the Veteran’s GERD (the digestive system, specifically the esophagus and stomach) and the symptoms (including epigastric distress, dysphagia, pyrosis, and regurgitation). As these diagnostic codes reference both the location and symptoms of the Veteran’s GERD, rating by analogy is appropriate. The Veteran’s entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1. Where the veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the veteran is entitled to “staged” ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Under Diagnostic Code 7346, a 10 percent rating is assigned for 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. 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. 38 C.F.R. § 4.114, Diagnostic Code 7346. The Veteran was first examined for his GERD in October 2011. VA Disability Benefits Questionnaire (DBQ) Medical Examination, October 2011. At that time, he complained of indigestion and epigastric burning with reflux. He further described his symptoms as a gnawing or burning pain at night, occurring daily or more often, lasting one to two hours, and relieved by Zantac and Tums, as well as daily nausea, vomiting less than weekly, episodic diarrhea, belching, and constipation. The examiner observed abdominal tenderness with no signs of significant weight loss, malnutrition, or anemia. The Veteran was next examined for his GERD in December 2014. VA Esophageal Conditions examination, December 2014. At that time, he reported nightly reflux that was worse with lying flat, sleeping with an elevated pillow, and taking omeprazole but that it did not seem to help. The examiner noted symptoms of reflux, regurgitation, sleep disturbance caused by esophageal reflux (four or more times per year, lasting less than one day), and melena with moderate anemia (four or more times per year, lasting less than one day). Despite this notation of moderate anemia, the examiner cited a November 2014 complete blood count that was within normal limits. The examiner did not perform any diagnostic tests or procedures and did not find any esophageal stricture, spasm, or diverticulum, scars, or any other pertinent physical findings. He concluded that the Veteran’s GERD did not affect his ability to work. The Veteran was then examined for his GERD in December 2019. VA-LHI Esophageal Conditions examination, December 2019. At that time, he reported he had been taking medication (famotidine, dicyclomine, and omeprazole) with good results and that he occasionally had acid reflux that would wake him up. He complained of pyrosis, reflux, regurgitation, sleep disturbance caused by esophageal reflux (four or more times per year, lasting less than one day), and nausea (four or more times per year, lasting less than one day). He denied any symptoms productive of considerable impairment of health, a symptom combination productive of severe impairment of health, persistently recurrent epigastric distress, infrequent episodes of epigastric distress, dysphagia, pain (substernal, arm, and shoulder), material weight loss, vomiting, hematemesis, or melena with moderate anemia. The examiner noted that there was no esophageal stricture, spasm, or acquired diverticulum and no scars or other pertinent physical findings. He concluded that the Veteran’s GERD did not affect his ability to work. The Veteran was most recently examined for his GERD in December 2020. VA-LHI Esophageal Conditions examination, December 2020. At this time, he complained of nausea (four or more times per year, lasting less than one day), reflux, heartburn, stomach cramps, infrequent episodes of epigastric distress, dysphagia, reflux, and regurgitation. He reported that, despite making dietary changes, taking medication (omeprazole), not eating within two hours of sleep, and sleeping with propped pillows, his GERD was still not controlled. He denied any symptoms productive of considerable impairment of health. The examiner noted that a February 2020 upper endoscopy was normal and there were no other significant test findings or results. In a February 2021 addendum, the examiner noted that the Veteran’s report of heartburn on the day of the examination could be interpreted as chest pain and that he had a history of esophageal dysphagia with dilation in April 2017. VA-LHI addendum opinion, February 2021. The medical evidence also includes VA and private treatment records (TRs) noting the Veteran’s gastrointestinal and esophageal complaints and treatment. These records are consistent with the VA and VA contract examinations of record. Notably, a May 2019 VA TR indicated that the Veteran had no chronic GERD symptoms or dysphagia while on medication and that he denied any melena or hematochezia. VA TR, May 2019. A February 2020 VA TR also indicated that his GERD was controlled with diet, despite his omeprazole having expired. VA TR, February 2020. In addition to the medical evidence, the Veteran has provided written statements and hearing testimony regarding his gastrointestinal and esophageal symptoms. This lay evidence is also consistent with the VA/VA contract examination reports. Significantly, none of his testimony or statements indicate that he has experienced considerable impairment of health. Upon review of the evidence of record, discussed above, there is no basis for an initial rating in excess of 10 percent under his currently assigned diagnostic code at any time during the period on appeal. Although the Veteran reported symptoms of GERD, including reflux, and needing to take medication, there is no evidence that it was productive of considerable impairment of health. Significantly, there was no evidence of abnormalities in his bloodwork or other signs of considerable impairment of health. While the December 2014 examiner reported moderate anemia, this was not substantiated by the bloodwork. Moreover, he specifically found that his GERD did not impact his ability to work. While his symptoms are certainly bothersome, as evidenced by his current 10 percent rating, they do not impact his ability to work or result in considerable impairment of health. Without evidence of such, a higher rating is not warranted under Diagnostic Codes 7399-7346. The Board has also considered the Veteran’s general lay statements that he should be entitled to a higher rating. Notably the Veteran, as a lay person, is competent to describe observable symptoms. However, laypersons do not have the competence to render an opinion as to the level of severity of GERD. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Additionally, the Board notes that there is no indication in the medical evidence of record that the Veteran’s symptomatology warranted other than the 10 percent rating assigned during the appeal period. Assignment of staged ratings is not warranted. See Fenderson, supra. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an initial rating in excess of 10 percent, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision in this matter. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for dermatitis, urticaria, and pruritus is remanded. The Veteran’s skin claim was remanded in August 2020 for a new examination that specifically addressed the severity of the skin symptoms during a flare up. The December 2020/February 2021 examiner indicated that the Veteran had flare ups of skin symptoms, but that she could not determine the extent of involvement during a flare up without resorting to mere speculation. She noted that the objective findings have differed from examination to examination and provided an estimate based on the prior objective findings. However, she failed to obtain specific information from the Veteran regarding his flare ups and use that in her determination, as directed in the August 2020 Board remand. In light of this deficiency, the claim must be remanded once again. See Stegall v. West, 11 Vet. App. 268 (1998); see also Voerth v. West, 13 Vet. App. 117, 123 (1999) (holding that an examination is not required during an active phase that lasted “only for a few days out of a year”); cf. Ardison v. Brown, 6 Vet. App. at 408 (holding that an examination must be provided during an active phase that lasts weeks to months at a time) or whether an examiner’s description of Mr. [REDACTED] condition during a flare-up would suffice; accord Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017) (explaining that an examiner’s description of functional loss during a flare-up may derive from information procured from relevant sources, including a veteran’s lay statements). The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician, other than the December 2020/February 2021 examiner, to determine the current severity of his service-connected skin disability. The examiner should provide a full description of the disabilities and report all signs and symptoms NECESSARY FOR EVALUATING THE VETERAN’S DISABILITIES UNDER THE RATING CRITERIA. With regard to dermatitis, urticaria, and pruritus, the examiner must: (a.) attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the amount of affected skin during such a flare up. (b.) If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on: 1. the other evidence of record 2. the Veteran’s statements 3. AND ANY PHOTOGRAPHS PROVIDED BY THE VETERAN. (c.) If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to: 1. a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), 2. a deficiency in the record (additional facts are required), or 3. the examiner (does not have the knowledge or training). (d.) Regardless if the examiner can evaluate the claim based on direct observation, any photographs submitted should be presented to the examiner for review and it must be documented in the record that the photographs were reviewed. 1. The examiner should comment on the severity sufficient to evaluate under the applicable rating criteria. 2. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION.\ YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moore, 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.