Citation Nr: 21041091 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-25 786 DATE: July 8, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for hypertension is denied. Entitlement to an initial 10 percent rating, but no higher ,for gastroesophageal reflux disease (GERD) prior to August 16, 2020, is granted. and in excess of 10 percent on and after August 16, 2020, is denied. FINDINGS OF FACT 1. During the appeal period, the Veteran's hypertension did not manifest in diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. 2. Prior to August 16, 2020, the Veteran's GERD was manifested by chest pain/burning, and pyrosis/reflux. 3. From August 16, 2020, the Veteran's GERD did not more nearly approximate symptoms that were productive of considerable impairment of health. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7101. 2. The criteria for an initial 10 percent rating, but no higher, for GERD prior to August 16, 2020, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Codes 7399-7346. 3. The criteria for an initial evaluation in excess of 10 percent since August 16, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Codes 7399-7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from November 1975 to August 1990 and from January 2003 to August 2003. These matters come before the Board of Veterans' Appeals (Board) from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Board remanded the Veteran's claims for additional development. Outstanding VA treatment records were obtained, and the Veteran was asked to provide release forms for any relevant private treatment records to which the Veteran did not respond. The Board recognizes that the Veteran is treated by a long-time private physician, Dr. Henochowicz, as demonstrated by records already associated with the claims folder and the notations in the most recent VA examination. However, the Veteran was provided the opportunity to submit those records and/or provide release forms in February 2020 and did not do so. Accordingly, remand to obtain private records is not required. The Veteran was also provided adequate VA examinations to evaluate her service-connected disabilities. Accordingly, the Board's remand directives were completed. Neither the Veteran nor her representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). In an August 2020 rating decision, the RO granted a higher initial 10 percent rating effective August 16, 2020, creating staged ratings. The issue on appeal has been recharacterized as shown on the title page of this decision. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans' Claims (Court) held that entitlement to a total disability rating based on individual unemployability (TDIU) claim may be considered part and parcel of an increased rating claim. The Court found that when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. Though the evidence shows that the Veteran recently retired, the evidence does not raise unemployability as a result of the disabilities on appeal. Accordingly, the Board finds that Rice is not applicable and a need for consideration of TDIU is not inferred as part of the claims for increased initial ratings. Increased Rating Disability ratings 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 ratings may be assigned for separate periods of time based on the facts found. 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 ratings 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. 1. Entitlement to an initial rating in excess of 10 percent for hypertension Hypertension is rated pursuant to 38C.F.R. §4.104, Diagnostic Code (DC) 7101, for hypertensive vascular disease (hypertension and isolated systolic hypertension). Under Diagnostic Code 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; it is the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. Private and VA treatment records show treatment for hypertension. In 2013, the Veteran was provided a VA examination. The claims folder was reviewed. Concerning medical history, the Veteran was diagnosed with hypertension in 1993 and had elevated blood pressure ever since. The examiner noted that she was currently on medication, Diovan, and asymptomatic. The examination report shows blood pressure readings taken on different days January 19, 2013, November 20, 2013, and November 2013. The readings were 130/77, 136/81, and 126/81. In 2014, the Veteran's private physician, submitted a completed Disability Benefits Questionnaire concerning the Veteran's hypertension. Dr. Henochowicz noted blood pressure readings, taken on different days during the appeal period, of 137/83, 137/84, and 110/72. It was noted that the Veteran had been continuously treated since April 1993. In August 2020, the Veteran was provided a VA examination. The claims folder was reviewed. Concerning history of hypertension, the Veteran was currently treated with medication. She reported headache and dizziness and that she took the medication, Irbesartan daily. The blood pressure readings taken on the day of the VA examination were recorded as follows: 138/83, 137/81, and 139/75. The examiner determined that there were no other pertinent physical findings, complications, signs, or symptoms related to the Veteran's hypertension. As to functional impact on work, the Veteran would have difficulties with prolonged standing, walking, pushing, pulling, lifting, and climbing ladders secondary to symptoms. A higher 20 percent rating under Diagnostic Code 7101 is not warranted unless diastolic pressure is predominantly 110 or more, or systolic pressure is predominantly 200 or more. The Veteran's hypertension has not manifested in any readings of diastolic pressure 110 or more, or systolic pressure 200 or more. The Veteran is on continuous medication, corresponding to the criteria for a 10 percent rating under Diagnostic Code 7101. Accordingly, a preponderance of the evidence is against the claim and a higher rating is not warranted for hypertension. 2. Entitlement to an initial compensable rating for GERD prior to August 16, 2020, and in excess of 10 percent on and after August 16, 2020 The Veteran's GERD is rated under Diagnostic Codes 7399-7346. Under Diagnostic Code 7346, a 10 percent rating is warranted for disability manifested by two or more of the symptoms for the 30 percent rating of less severity. A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, causing considerable impairment of health. A 60 percent rating, the maximum available, is warranted 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. In 2013, the Veteran was provided a VA examination. The claims folder was reviewed. The Veteran stated that she began to experience dyspepsia and heartburn in 1987 and must take medication daily or her symptoms return. She took the medication, Prilosec. She had symptoms of pyrosis and reflux. There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to GERD. In September 2015, the Veteran was provided a VA examination. The claims folder was reviewed. The Veteran reported that she was initially diagnosed with GERD in the late 1970s when she began to experience a burning sensation in her chest. At the time she started taking TUMS with minimal relief. She was later prescribed Omeprazole and continued to take Omeprazole noting relief of symptoms. She reported that if she missed one dose of the medication, she begins to experience symptoms of chest pain/burning. There were no recorded signs or symptoms related to her GERD. The examiner determined that the level of severity of the Veteran's GERD was mild to moderate in that if she did not take her medication, her symptoms return. A June 2020 VA treatment record shows that the Veteran's symptoms of GERD were well controlled with Omeprazole. The Veteran denied abdominal pain, nausea, and vomiting. In August 2020, the Veteran was provided a VA examination. The claims folder was reviewed. The Veteran has been treated with medication and continues to have symptoms of GERD. She reported symptoms of indigestion, heartburn, regurgitation, and nausea. She took the medication, Omeprazole, and Tums for treatment. The examiner listed symptoms of dysphagia, pyrosis, reflux, regurgitation, substernal pain, and nausea episodes three times per year of less than one day. There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to GERD. Prior to August 16, 2020, the evidence reflects that the Veteran experienced two or more of the symptoms listed in the 30 percent criteria under Diagnostic Code 7346. The 2013 VA examination noted the presence of pyrosis and reflux, but there was no evidence of regurgitation, dysphagia, substernal or arm or shoulder pain. In addition, the 2015 VA examination report did not show any current signs or symptoms of GERD, noting that the Veteran took medication to control symptoms of chest pain and burning. While some control is noted, throughout the period prior to August 16, 2020, two symptoms of GERD are shown, primarily pyrosis and chest pain. A 10 percent evaluation is warranted, but in the absence of further symptoms or a showing of considerable impairment of health, a yet higher rating is not warranted. From August 16, 2020, a rating in excess of 10 percent is not warranted, either. While there is evidence of dysphagia, pyrosis, reflux, regurgitation, substernal pain, and nausea, the evidence does not reflect that the Veteran's GERD manifests in considerable impairment of health. The 2020 VA examination report shows that the examiner did not check the box to indicate that there was considerable impairment of health and there were no other signs or symptoms attributable to her GERD other than the symptoms listed in the report. Thus, a rating in excess of 10 percent is not warranted. A preponderance of the evidence is against the claim and the claim is denied. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Seay, 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.