Citation Nr: 22014264 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 18-41 230 DATE: March 12, 2022 ORDER Prior to March 1, 2019 and beginning August 1, 2020, entitlement to a rating for gastroesophageal reflux disease (GERD) higher than 10 percent disabling is denied. For the rating interval from March 1, 2019 through July 31, 2020, entitlement to a 30 percent rating, but no more, for GERD is granted. FINDINGS OF FACT 1. For the entire claim period except for the interval from March 1, 2019 through July 3, 2020, the Veteran's GERD have been manifested by two or more of the following symptoms: persistent epigastric distress, dysphagia, pyrosis, regurgitation, and substernal or arm or shoulder pain; but for this entire claim period except for the interval from March 2019 through July 2020, the GERD has been of less severity than that warranting a 30 percent rating and has caused less than considerable impairment of health. 2. For the claim interval from March 1, 2019 through July 31, 2020, the Veteran's GERD and its symptoms have not been productive of material weight loss, anemia, or severe impairment of health. 3. For the claim interval from March 1, 2019 through July 31, 2020, the Veteran's GERD has been manifested by disability equivalent to moderate stricture of the esophagus. For other intervals during the claim period, moderate stricture of the esophagus was not present. CONCLUSIONS OF LAW 1. For the rating interval prior to March 1, 2019 and beginning August 1, 2020, the criteria for a rating higher than 10 percent for GERD have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.114, Diagnostic Codes 7203, 7346. 2. For the rating interval from March 1, 2019 through July 31, 2020, the criteria for a 30 percent rating, but no higher, for GERD have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.114, Diagnostic Codes 7203, 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1993 to September 2014. The Department of Veterans Affairs (VA) is grateful for his service. The Veteran testified before the undersigned Veterans Law Judge at a hearing conducted in November 2020. A transcript of the hearing is of record. At the hearing, the Veteran, through his authorized representative, waived Agency of Original Jurisdiction (AOJ) review of evidence received since the supplemental statement of the case (SSOC) in April 2019. See Hearing transcript (Ht), pg. 11. Entitlement to an increased rating for GERD The Veteran contends, including through his authorized representative and in statements at his hearing, that his GERD warrants the next higher, 30 percent rating under Diagnostic Code 7346, based on severity of reflux symptoms, or under Diagnostic Code 7203, based on esophageal stricture, and that this 30 percent rating is warranted for the entire claim period. See Ht, pg. 10. The Board here finds that a higher, 30 percent rating is warranted for part of the rating interval based on esophageal stricture, as explained below. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Because varying, distinct degrees of disability may have been experienced over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Id. at 505. Also, separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. The primary concern in a claim for an increased rating for service-connected disability is the present level of disability over the rating period in question. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise), the claimant receives the benefit of the doubt. Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 at *10 (Fed. Cir. Dec. 7, 2021). If the evidence persuasively favors one side or the other, there is not an approximate balance, and therefore the benefit-of-the-rule does not apply. Id. at *11. The Veteran's GERD is properly rated by analogy under Diagnostic Codes 7399-7346 because the GERD is analogous to hiatal hernia. Under that code, a 60 percent rating is warranted with symptoms of pain, vomiting, material weight loss and hematemesis (vomiting blood) or melena (dark feces containing partly digested blood) with moderate anemia; or other symptom combinations productive of severe impairment of health. A 30 percent rating is warranted with persistently recurrent epigastric distress with dysphagia (difficulty swallowing food or liquid), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 10 percent rating is warranted with two or more of the symptoms for the 30 percent rating of less severity. 38 C.F.R. § 4.114, Diagnostic Code 7346. As to Diagnostic Code 7203 for esophageal stricture, a 30 percent rating is warranted for moderate stricture, while a 50 percent rating is warranted for stricture permitting liquids only. 38 C.F.R. § 4.114, Diagnostic Code 7203. A submitted September 2015 Disability Benefits Questionnaire (DBQ) is not signed by any physician, nor is any physician listed in the document. It appears to be simply a form used by the Veteran to provide a medical history and statement of current symptomatology. The form indicates that upper endoscopies included one in March 2002 revealing mild erosive esophagitis, and one in June 2015 revealing mild fundal gastritis. The form also indicates that the Veteran took Nexium twice daily, and that symptoms included persistently recurrent epigastric distress four or more times per year lasting one to nine days, dysphagia recurring three times per year and lasting one to nine days, pyrosis occurring four or more times per year and lasting one to nine days, reflux occurring four or more times per year and lasting one to nine days, regurgitation occurring twice per year and lasting less than a day, substernal arm or shoulder pain occurring four or more times per year and lasting one to nine days, and sleep disturbance caused by esophageal reflux occurring four or more times per year and lasting one to nine days. The form indicates absence of anemia, weight loss, nausea, vomiting, hematemesis, melena, and esophageal stricture, spasm, or diverticulum. There is also no indication of dilation procedures or other systemic symptoms. Upon VA esophagus examination in April 2016, the examiner reviewed service treatment records and VBMS records as well as medical records that were brought to the examination. A diagnosis of GERD from November 2011 was noted. The Veteran provided a history of being unable to swallow food when he was in Afghanistan after September 2001, and being seen medically in March 2002 and being given Prilosec. He reported having cycles or flare-ups of the condition. A June 2015 esophagogastroduodenoscopy (EGD) revealed no sign of gastritis, but the Veteran reported continued GERD symptoms. Current treatment consisted of Nexium taken daily. Reported current symptoms included persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, and substernal pain. The Veteran reported sleep disturbance caused by esophageal reflux with four or more recurrences per year lasting one to nine days. The examiner noted that while the Veteran reported symptoms consistent with esophageal stricture, the EGD showed no stenosis. In a submitted May 2017 statement, the Veteran informed that his GERD had worsened during deployment in December 2001, but that with treatment and changed diet his condition had improved by February 2002. An upper GI examination revealed erosive gastritis. Treatment was then modified, and in ensuing years the Veteran also made changes in diet and exercise. He reported subsequent increased severity of symptoms, and undergoing an EGD with a finding of esophagitis. The Veteran reported having continued unresolved chest pain and some hives symptoms, leading to findings of allergies to some medications, and associated treatment difficulties. The Veteran suffered bilateral pulmonary embolisms for which he was hospitalized in February 2013, and a CT angiography revealed a sliding hiatal hernia. The Veteran reported that he underwent multiple upper GI procedures and CT scans that were not documented, with diagnosis of sliding hiatal hernia. The Veteran had continued chest pain and in 2014 underwent heart evaluation including EKG and echocardiogram which revealed no problems with his heart. He was placed back on Zantac in 2014 which reduced GERD symptoms from almost daily to approximately three times per week, and then he was placed on Nexium in May 2014, which he continued to take. In February 2015, due to return of nearly daily chest pains, he saw a cardiologist and underwent a stress test, which was negative. A Dr. M. assured him that his chest pains were not cardiac. An upper gastrointestinal examination resulted in a diagnosis of GERD. The Veteran added that he continued to have "cyclical episodes" of reflux/GERD and "almost daily chest pain." The Veteran then concluded, "I believe my history adequately demonstrates that I do have persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or shoulder pain which is productive of considerable impairment of health." The Veteran and his representative substantially recounted this history in testimony at the November 2020 hearing. Also at the hearing, the Veteran endorsed ongoing symptoms including heartburn, shoulder pain, abdominal pain, and some sleep problems related to GERD symptoms. He also reported having nausea, occasional vomiting, and some diarrhea. The Veteran provided a history of worsening of his GERD by the end of 2019, and undergoing a fundoplication in July 2020 to treat his GERD and associated difficulty swallowing food because more conservative treatment had not alleviated the swallowing difficulty. He testified to improvement in dysphagia and reflux symptoms since the surgery. However, the Veteran added, "I don't think the symptoms improved much since the 2018 [VA examination]." (Ht, pg. 8.) Also at the hearing, the Veteran's representative called attention to a pathology report from January 2020 reflecting chronic inflammation and eosinophils. The representative also asserted a diagnosis of "profound GERD," which was a finding when the Veteran underwent fundoplication in July 2020, as noted below. (Ht., pg. 11.) However, while the Veteran has competently recounted his ongoing symptoms and history of treatment for GERD, he has not informed how this has resulted symptoms consistent with "considerable impairment of health," which is a significant part of the criteria for a 30 percent rating under Diagnostic Code 7346. Submitted in April 2020 and November 2020 were multiple medical documents pertaining to GERD, including records associated with private procedures in January 2020 and July 2020. A November 2019 Benefits Hospital treatment visit notes a referral for dysphagia and reflux symptoms associated with the Veteran's long-standing acid reflux. A history was then noted of the Veteran doing 'very well' for a period of four or five years ago until March 2019, when the Veteran began to notice dysphagia symptoms when the Veteran ate bread products, which were "hard to get down," with associated sensation of choking when swallowing, so that he "keeps liquids on hand to get the bolus down." The Veteran denied any associated episodes of nausea or vomiting. The Veteran's upper endoscopy report from 2015 was reviewed, and was noted to reveal gastritis but not any signs of esophagitis or Barrett's esophagus. The Veteran underwent an EGD in January 2020. Preoperative diagnoses were noted to include GERD, cough, dysphagia, and an abnormal barium esophagram with aspiration barium, though a modified barium swallow showed no aspiration. EGD procedures included placement of a Bravo capsule for pH monitoring, esophageal dilation, and esophageal biopsy. Operatively, "Examination of the esophagus was unremarkable," and, "There was no evidence of erosive reflux esophagitis, Barratt's esophagus, or distal esophageal ring or stricture." However, "Because of concern for proximal esophageal stricture it was elected to perform a wire guided esophageal dilation." "There was minimal resistance to pass the 54 dilator." "After the dilator and wire were removed repeat esophagoscopy revealed no evidence of proximal esophageal mucosal trauma. Very mild trauma was seen at the esophagogastric junction suggesting that at least some narrowing was present there." The postoperative diagnoses included no evidence of proximal esophageal stricture or Zenker's diverticulum, status post wire guided esophageal dilation; mild distal esophageal stricture, status post wire guided esophageal dilation; no evidence of erosive reflux esophagitis or Barrett's esophagus; and successful placement of Bravo capsule for pH monitoring. A January 2020 ambulatory pH monitoring study with the Veteran taken off of acid suppression showed abnormal esophageal pH, with a 2-day DeMeester score of "29.5 (normal less than 14.7)." A January 2020 esophageal biopsy pathology report diagnosed "mild chronic inflammation with eosinophils." At a June 2020 treatment visit with Great Falls Surgical Associates, the Veteran complained of dysphagia with substernal burning and pain. The Veteran expressed interest in surgical remedies. Upon review of symptoms, the Veteran denied constitutional symptoms including weight loss, fevers, chills, and night sweats; he denied anemia issues. He also denied melena, blurry vision, chest pain, shortness of breath, and orthopnea. In July 2020 the Veteran underwent a Nissen fundoplication. No hiatal hernia was found, but there was a significant amount of inflammation around the distal esophagus, "significantly supporting the diagnosis of profound gastroesophageal reflux disease." At a July 2020 postoperative follow-up, the Veteran reported doing well with no problems, heartburn largely controlled, with occasional dysphagia. The examiner assessed that the dysphagia should continue to improve. In this case, the Veteran's statements and medical evidence supports the presence of two or more of the listed symptoms, with the presence of epigastric distress, dysphagia (difficulty swallowing), pyrosis (burning sensation), and regurgitation, as well as endorsed substernal or shoulder pain (though the record reflects that the Veteran suffers from post-operative bilateral shoulder disability to which shoulder pain has been attributed). However, the Board finds that the evidence is persuasively to the effect that the Veteran's GERD has been of "less severity" during the rating period except potentially for the interval from March 2019 through July 2020, since no associated generalized impairment of health has been either alleged by the Veteran or found by examiner, and considerable impairment of health is not shown. The rating criteria clearly delineate attributable severe impairment of health as warranting a 60 percent rating, considerable impairment of health as warranting a 30 percent rating, and "less severity" as warranting a 10 percent rating. The Board concludes that in this case, in absence of generalized impairment of health attributed to the GERD or consistently more severe symptoms, prior to March 2019 and subsequent to July 2020 GERD has been consistent with impairment of "less severity." Accordingly, while the Board does not question that the other listed symptoms for a 30 percent rating are present, the Board concludes that except for the interval from March 2019 through July 2020, these were not of such severity as to warrant a 30 percent rating for GERD under Diagnostic Code 7346 in the absence of evidence supporting at least some significant impairment of health associated with the GERD, considerable impairment of health not having been shown. The Board accordingly concludes that for the rating period, except for the interval from March 2019 through July 2020, the Veteran's GERD including symptoms presented reflects GERD of "less severity" than that consistent with the criteria for a 30 percent rating under Diagnostic Code 7346. This is consistent with the Veteran's self-reported history at his November 2019 treatment visit of doing 'very well' for an interval from four or five years prior up until March 2019 when he began to notice dysphagia symptoms, and is also consistent with the Veteran's testimony that his dysphagia and reflux symptoms had improved following the July 2020 fundoplication, and that his symptoms had improved since 2018 (though 'not much'). Necessarily, if he was doing well for four or five years until March 2019 and he was somewhat improved from 2018 following his July 2020 fundoplication, then he has been doing well following the July 2020 fundoplication. The evidence is persuasively against the Veteran's GERD warranting a 30 percent rating under that Diagnostic Code 7346 for the rating period except for the interval from March 2019 through July 2020. The Board recognizes that the finding of profound GERD at the time of fundoplication most likely reflects more severe GERD meeting the criteria for a 30 percent rating, but this was during the interval which the Board here recognizes as warranting a 30 percent rating based on esophageal stricture. However, the Board concludes that assigning a 30 percent rating under Diagnostic Code 7203 for esophageal stricture simultaneously with a separate rating for GERD would amount to impermissible pyramiding, or assigning multiple ratings for the same disability. 38 C.F.R. § 4.14. The Veteran's esophageal symptoms, including pyrosis and dysphagia, also reflect symptoms of esophageal stricture, and the Board concludes that sufficient non-overlapping symptoms are not present to support compensable ratings simultaneously under both diagnostic codes 7203 and 7346. The Board here assigns the 30 percent under Diagnostic Code 7203 because the Veteran's symptoms more readily meet the criteria for a 30 percent rating under that code for the interval from March 2019 to July 2020, while the Board finds that with resolution of symptoms of significant stricture following July 2020 fundoplication, a reversion to a 10 percent rating under Diagnostic Code 7346 only from August 2020 is appropriate. The Board finds that for this same interval from March 2019 through July 2020, material weight loss and anemia have not been shown, and neither has severe impairment of health associated with the Veteran's GERD, and hence the evidence is persuasively against assignment of a 60 percent rating for GERD under Diagnostic Code 7346 for the interval from March 2018 through July 2020. The stricture as described by the Veteran at his hearing as requiring fundoplication in July 2020 would appear to constitute moderate stricture, since the Veteran testified to having difficulty swallowing food, though he did not testify to being only able to ingest liquids due to the stricture, and neither is this indicated elsewhere in the record. Accordingly, despite the January 2020 procedure revealing only mild findings consistent with stricture, the Board affords the Veteran the benefit of the doubt and grants a 30 percent rating based on moderate stricture under Diagnostic Code 7203 for the interval between March 2019, when the Veteran reported onset of swallowing difficulties, and July 2020, when the underwent a second procedure (Nissen fundoplication) to alleviate his dysphagia. The Veteran testified to no longer having difficulty with swallowing following the July 2020 procedure, and hence a 30 percent rating under Diagnostic Code 7203 is not warranted after July 2020. Because the evidence is persuasively against higher or additional ratings being warranted than the assigned 10 percent rating under Diagnostic Code 7346 and no rating under Diagnostic Code 7203 prior to March 2019, a 30 percent rating under Diagnostic Code 7203 and no rating under Diagnostic Code 7346 for the interval from March 2019 through July 2020, and a 10 percent rating under Diagnostic Code 7346 and no rating under Diagnostic Code 7203 beginning from August 2020, the benefit-of-the-doubt rule does not apply beyond these ratings hereby assigned. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch, supra. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.