Citation Nr: 21025428 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-12 169 DATE: April 28, 2021 ORDER Entitlement to an initial increased rating for service-connected gastroesophageal reflux disease (GERD) in excess of 10 percent, prior to March 28, 2019, is denied. Entitlement to an increased 30 percent rating for service-connected GERD, from March 28, 2019, is granted. REMANDED Entitlement to service connection for chronic fatigue syndrome (CFS) to include as secondary to posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. Prior to March 28, 2019, the Veteran’s GERD did manifest in the following symptoms of less severity: pyrosis (heartburn), regurgitation, and nausea, but was not manifested by persistently recurrent epigastric distress, hematemesis, substernal or arm or shoulder pain, or other symptoms productive of considerable impairment of health. 2. From March 28, 2019 forward, the Veteran’s GERD manifested in persistently recurrent epigastric distress, pyrosis (heartburn and/or reflux), regurgitation, shoulder pain, substernal pain, which were productive of considerable impairment of health, but not by material weight loss, melena, moderate anemia, or other symptom combinations productive of severe impairment of health. CONCLUSIONS OF LAW 1. For the period prior to March 28, 2019, the criteria for an initial increased evaluation for the Veteran’s service-connected GERD in excess of 10 percent have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.114a, Diagnostic Code 7399-7346 (2020). 2. For the period beginning March 28, 2019, the criteria for an increased 30 percent evaluation for the Veteran’s service-connected GERD have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.114a, Diagnostic Code 7399-7346 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Marine Corps from October 2000 to October 2004. 1. Entitlement to a rating in excess of 10 percent for gastroesophageal reflux disease (GERD) The Veteran contends the symptoms of GERD warrant a rating in excess of 10 percent. In January 2021, the Veteran was granted an increased 10 percent evaluation for GERD, effective June 14, 2012, pursuant to 38 C.F.R. § 4.114, Diagnostic Code 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 rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. 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 digestive condition (Diagnostic Code 7399) is rated under the criteria for hernia hiatal (DC 7346). See 38 C.F.R. § 4.20. Under Diagnostic Code 7346, a 10 percent evaluation is contemplated for a hiatal hernia with two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent evaluation is warranted 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 contemplates pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Turning to the evidence, the Veteran was afforded a VA examination in January 2013. The Veteran reported having heartburn, which was well controlled with medication. The examiner diagnosed the Veteran with GERD and a hiatal hernia and noted symptoms of pyrosis (heartburn). X-ray testing performed with the VA examination showed mild spontaneous gastroesophageal reflux and a very small hiatal hernia. Throughout the appellate period, the Veteran has been treated by private medical facilities for medication management to control his symptoms of GERD. In March 2019, the Veteran was treated for heartburn, which was described as burning that can go into his chest and left shoulder. See Red Bank Gastroenterology March 2019 treatment notes. In November 2019, the Veteran testified before the undersigned as to his symptoms of GERD. He stated GERD symptoms interfered with his job as a detective in that he had to watch what he ate and struggled with sitting in the car and at his desk. He stated that he has to avoid getting too close to people due to his bad breath and, while never formally disciplined, had been spoken to by his superiors for actions related to his GERD. The Veteran further stated he had trouble sleeping and experienced pain and discomfort in his chest and shoulder. The Veteran stated he continued to experience pain despite his medications. In November 2020, the Veteran was afforded a VA examination. The Veteran reported having reflux since 2001-2002 which had progressed. He stated he takes medication daily and has pain in his chest and left shoulder. The Veteran stated his GERD can get in the way of his work as a police officer due to needing to walk around when he has to sit in a car. He stated he was also cognizant of his bad breath caused by the GERD and attempted to not stand too close to people. The examiner noted symptoms of pyrosis, reflux, regurgitation, pain in the chest and shoulder, sleep disturbance, and nausea. X-ray testing performed with the VA examination showed spontaneous reflux and a small hiatal hernia. The examiner noted the Veteran’s GERD did not impact his ability to work. The Board has reviewed the probative evidence of record including the Veteran’s statements and evidentiary submissions and finds that the criteria for a higher 30 percent rating under Diagnostic Code 7346 have not been met or more nearly approximated for GERD prior to March 28, 2019, as the Veteran’s gastrointestinal disability was not shown to be productive of considerable impairment of health. Prior to March 28, 2019, the record does indicate that the Veteran’s GERD was manifested by two or more of the following symptoms associated with epigastric distress: pyrosis (heartburn), regurgitation, nausea with periodic episodes of 4 or more per year. See 38 C.F.R. § 4.114, Diagnostic Code 7346. However, the weight of the evidence demonstrates that his symptoms are of lesser severity than that for a 30 percent rating, given he was stable taking one prescription medication per day with occasional over-the-counter remedies when required. For this period, the Veteran has not contended otherwise. Evidence shows that from March 28, 2019, the Veteran’s GERD has manifested in persistently recurrent epigastric distress, pyrosis (heartburn and/or reflux), regurgitation, shoulder pain, substernal pain, symptoms productive of considerable impairment of health, and periodic episodes of nausea and pain, with 4 or more periods per year. As noted above, a 30 percent disability evaluation is contemplated for persistently recurrent epigastric distress with dysphagia, pyrosis, “and” regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Throughout this appeal period, the Veteran’s GERD symptoms were controlled by various medications. In this case, the VA examiners and private treatment reports indicate the Veteran’s symptoms are productive of considerable impairment of health to meet the full requirements of the 30 percent criteria beginning March 28, 2019. In light of the Veteran’s nausea, regurgitation, pain, sleep disturbances, and other symptoms of considerable impairment of health noted, the Veteran’s symptomatology approximately equate a considerable impairment of health if he does not take his medication daily or when eating certain foods. Therefore, with consideration of the benefit of the doubt doctrine, the Board finds that his symptoms more nearly approximate those required for a 30 percent evaluation from March 28, 2019; however, a rating in excess of 30 percent from that date is not warranted. The Board finds that the evidence of the evidence demonstrates that a rating in excess of 30 percent is not warranted. Current symptoms of gastroesophageal reflux disease include persistently recurrent epigastric distress, dysphagia, pyrosis (heartburn), reflux, regurgitation, sleep disturbance caused by esophageal reflux, and recurrent nausea and pain occurring four or more times per year, with duration of less than a day. The evidence does not reflect material weight loss, hematemesis, or melena with moderate anemia, or other symptom combinations productive of severe impairment of health to warrant higher disability ratings at any time during the appeal. Although the Veteran experiences symptoms described above that the Board finds to be productive of considerable impairment of health, the Board also notes that symptoms of material weight loss, hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health are not reported or found. The Board has considered the Veteran’s lay assertions regarding severity and finds that the symptoms prior to March 28, 2019 do not support an initial increased rating in excess of 10 percent, and from March 28, 2019, the symptoms warrant an increased 30 percent rating. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. REASONS FOR REMAND Although the Board regrets the delay, remand is required to ensure there is a complete record on which to decide the Veteran’s claim. 1. Entitlement to service connection for chronic fatigue syndrome (CFS) to include as secondary to PTSD is remanded. In February 2020, the Board remanded the Veteran’s claim for entitlement to CFS to include as secondary to PTSD to obtain a VA examination. In November 2020, the Veteran was afforded a VA examination. The examiner found the Veteran did not currently have a diagnosis of CFS and did not require continuous medication for CFS. The Veteran was noted to have symptoms attributable to CFS to include generalized muscle aches, migratory joint pain, sleep disturbance, an inability to concentrate, and forgetfulness. As the examiner found no current diagnosis, the examiner provided no opinions regarding the etiology of CFS. The Board finds the November 2020 VA examination to be inadequate. While the VA examiner indicated a review of the Veteran’s file had been completed, it is not clear the examiner considered all of the relevant medical records. Namely, private treatment records from December 2012 show the Veteran had been diagnosed with CFS and was being treated with daily medication. Further, the examiner did not provide any supporting rationale to explain why the Veteran’s symptoms of CFS did not constitute a diagnosis. Accordingly, the Board finds an additional medical opinion in consideration of the relevant evidence of record is warranted. The matters are REMANDED for the following action: 1. The Veteran should be scheduled for an appropriate VA examination to determine the nature, extent, onset, and etiology of his chronic fatigue syndrome. The claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide the following information: (a.) The examiner should identify any currently diagnosed conditions of chronic fatigue syndrome. The examiner is directed to consider and provide comment on the private treatment records documenting treatment for chronic fatigue syndrome in December 2012. (b.) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s chronic fatigue syndrome is due to or otherwise causally or etiologically related to his military service. In making a nexus determination, the examiner is directed to consider the Veteran’s November 2019 Board hearing testimony in which he stated having issues with fatigue during service for which he did not go to sick call for due to fearing being labeled a malingerer by other service personnel. The examiner is remined that the absence of treatment records is not fatal to a service connection claim. (c.) whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s chronic fatigue syndrome is due to PTSD. (d.) whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s chronic fatigue syndrome is aggravated by PTSD. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. Rationale must be provided for both causation and aggravation. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura C. Owens 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.