Citation Nr: 22003641 Decision Date: 01/25/22 Archive Date: 01/25/22 DOCKET NO. 17-12 827 DATE: January 25, 2022 ORDER A disability rating of 30 percent for gastroesophageal reflux disease (GERD) is granted. A disability rating of 20 percent for left lower extremity radiculopathy is granted. FINDINGS OF FACT 1. The Veteran's GERD is manifested by persistently recurrent epigastric distress with dysphagia, pyrosis and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. 2. The Veteran's left lower extremity sciatic nerve radiculopathy is manifested by moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 30 percent for GERD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.114, Diagnostic Code (DC) 7346. 2. The criteria for a disability rating of 20 percent for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.120, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 2004 to November 2008 to June 2010. His service decorations include the National Defense Service Medal, Iraq Campaign Medal with 2 bronze campaign stars, and the Global War on Terrorism Service Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision. The Board remanded the claims in September 2021 in order to obtain updated medical examinations. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. GERD The Veteran's GERD is presently rated at 10 percent under DC 7346. DC 7346 addresses hiatal hernia. 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 10 percent rating is assigned when two or more of the symptoms for the 30 percent evaluation are present with less severity. The Veteran underwent a VA examination in October 2021 to determine the severity of his service connected GERD. The examiner noted the Veteran's GERD symptoms to be worsening. Specifically, the examiner found the Veteran to have persistently recurrent epigastric distress, dysphagia, reflux, regurgitation, and substernal pain. Further, the examiner noted sleep disturbances caused by esophageal reflux occurring 4 or more times ber year and each episode lasting longer than 1 day. These findings are consistent with a 30 percent rating under the relative diagnostic criteria. Specifically, the fact that the Veteran reported having 4-5 episodes of going to the ER for "food being stuck" that had to be removed. This is evidence of considerable impairment of health as required for a 30 percent rating under DC 7346. A higher 60 percent rating is not warranted because GERD has not been shown to cause severe impairment of health. Neither the VA examinations, nor the Veteran's outpatient VA records show any history of vomiting, weight loss, anemia or other findings to indicate any significant health impairment resulting from GERD. Left Lower Extremity Radiculopathy The Veteran was assigned a 10 percent rating for left radiculopathy of the sciatic nerve under 38 C.F.R. § 4.124a, DC 8620. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8620. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy, is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. The terms "moderate" and "moderately severe" are not defined in the VA Schedule for Rating Disabilities, and the use of such terms by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of the level of paralysis present. All evidence must be evaluated in arriving at a decision regarding an increased rating. An October 2021 VA examination found moderate incomplete paralysis of the left lower extremity, consistent with a 20 percent rating. Further, the examiner noted the Veteran's reflex exam and sensory exam was normal. Additionally, there were no noted trophic changes. Therefore, the Board finds that an increased disability rating of 20 percent for left lower extremity sciatic nerve radiculopathy is proper. The record is silent for any evidence that the Veteran experienced moderately severe radiculopathy as required for a disability rating greater than 20 percent. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jorge Barroso, Associate 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.