Citation Nr: 22019983 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 17-58 993A DATE: April 3, 2022 ORDER Entitlement to an initial rating in excess of 10 percent for service-connected gastroesophageal reflux disease (GERD) is denied. Effective November 13, 2017, a 30 percent rating, but no higher, for service-connected GERD is granted. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's service-connected GERD has been manifested by dysphagia, pyrosis, and reflux that resulted in difficulty sleeping. 2. On and after November 13, 2017, the Veteran's service-connected GERD has been manifested by recurrent epigastric distress due to reflux, dysphagia, pyrosis, regurgitation, substernal pain, nausea, vomiting, and sleep disturbance that resulted in a considerable impairment of health, but there is no evidence of material weight loss, hematemesis, melena with moderate anemia, or symptoms productive of a severe impairment of health. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for service-connected gastroesophageal reflux disease (GERD) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.655, 4.114, Diagnostic Code (DC) 7399-7346. 2. Effective November 13, 2017, the criteria for a 30 percent rating, but no higher, for service-connected GERD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.655, 4.114, DC 7399-7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter is on appeal from an August 2013 rating decision that assigned an initial 10 percent rating for service-connected GERD, effective March 2, 2013. The Veteran disagreed with the initial rating assigned and this appeal ensued, which included a reduction and subsequent restoration of the initial 10 percent rating. In July 2020, the Board remanded the increased rating claim for additional evidentiary development and, while the claim was in remand status, the agency of original jurisdiction (AOJ) increased the Veteran's rating to 30 percent, effective May 4, 201. See October 2021 rating decision. The Veteran was notified of the AOJ's determination, but he did not withdraw his appeal. Therefore, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, the Board will consider whether the Veteran's service-connected GERD warrants an initial rating in excess of 10 percent prior to May 4, 2021, and a rating in excess of 30 percent thereafter. 1. Entitlement to an initial rating in excess of 10 percent for service-connected gastroesophageal reflux disease (GERD) prior to May 4, 2021 2. Entitlement to a rating in excess of 30 percent for service-connected GERD from to May 4, 2021 The Veteran's GERD disability is evaluated under 38 C.F.R. § 4.114, DC 7399-7346. The hyphenated diagnostic code assigned for GERD in this case indicates that a miscellaneous digestive disease, under DC 7399, is the service-connected disorder, while the residual condition (to which the Veteran's disability is rated by analogy) is hiatal hernia, which is evaluated under DC 7346. Pursuant to DC 7346, a 10 percent disability rating is warranted for two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent evaluation is warranted for persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The maximum 60 percent evaluation 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. The Rating Schedule does not define "considerable" or "severe" impairment of health; however, for reference, "considerable" is defined as "large in extent or degree," whereas "severe" is defined as "very painful or harmful." Merriam-Webster's Collegiate Dictionary 267, 1140 (11th ed. 2012). The Board may not consider the ameliorative effects of medication in evaluating this claim. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). A May 2013 VA examination shows a diagnosis of GERD with symptoms of dysphagia (difficulty swallowing), pyrosis (heartburn), and reflux. The medical history of the condition indicated it onset in 2012 and that the Veteran's treatment plan included taking continuous medication, Prilosec. The examiner marked that GERD caused no functional impact on the Veteran's ability to work. In August 2014, the Veteran endorsed having severe heartburn and acid reflux that he stated was causing sleep disturbances. However, subsequent VA treatment records reflect that the Veteran denied having any gastrointestinal symptoms, including abdominal pain, changes in his bowel habits such as constipation or diarrhea, vomiting, nausea, and blood in stool. See e.g., VA treatment records dated March 2014, July 2015, and May 2016. The treatment records do not otherwise contain any information or evidence regarding the severity of the Veteran's GERD disability, to include the use of any medication. Nevertheless, during the July 2017 VA examination, the examiner noted that the Veteran's GERD required continuous medication for treatment and was manifested by constant heartburn/pyrosis, reflux, and sleep disturbance due to his esophageal reflux that occurred four or more times a year. The examiner indicated that the Veteran's GERD causes no functional impact on his ability to work. In his November 2017 VA Form 9, the Veteran reported having epigastric distress at night, as well as regurgitation and substernal chest pain that occurred every other day. He also endorsed using Zantac twice a day, which he stated helped but did not prevent his symptoms. In May 2021, the Veteran submitted a DBQ that was completed by a private physician, Dr. Ahmed, who noted that the Veteran's symptoms included persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal and shoulder pain, nausea, vomiting, and sleep disturbance that occurred four or more times a year. Dr. Ahmed noted that a restrictive diet and the continuous use of two medications had been ineffective in the reduction of the Veteran's painful reflux symptoms. In this regard, Dr. Ahmed stated that the Veteran's symptoms greatly impacted his digestion and appetite, leading to decreased energy, lack of concentration, and difficulty sleeping. Notably, Dr. Ahmed indicated that the Veteran's symptoms resulted in a considerable impairment of health, as opposed to a severe impairment. Based on the foregoing, the Board finds that an initial rating in excess of 10 percent is not warranted for service-connected GERD, as the lay and medical evidence shows that his disability was manifested by three symptoms contemplated by the 30 percent rating under DC 7346, including dysphagia, pyrosis/heartburn, and reflux that resulted in difficulty sleeping. In evaluating this claim, the Board notes that the first lay or medical evidence of regurgitation or substernal pain is reflected in the Veteran's November 2017 statement. The evidence does not indicate that these symptoms were present at an earlier time. The Board also finds probative that he did not endorse these symptoms during the VA examinations conducted in August 2014 and July 2017 and that he denied having any gastrointestinal symptoms, including abdominal pain or vomiting, during outpatient treatment in March 2014 and May 2016; these were multiple opportunities for him to report such symptomatology and he would have been expected to do so given the discussion of the other symptoms of the same condition at those times, particularly during outpatient treatment when such reporting was to a medical provider for treatment purposes. Therefore, the Board finds that the evidence persuasively establishes that the Veteran's GERD disability was manifested by epigastric distress due to reflux, dysphagia, and pyrosis, in addition to regurgitation and substernal pain in November 2017, but no earlier, which warrants a 30 percent rating from that date. The Board acknowledges that the evidence dated in November 2017 does not explicitly state that the Veteran's symptoms resulted in a considerable impairment of health at that time; however, after resolving reasonable doubt in favor of the Veteran, the Board finds that, due to the frequency and severity of the symptoms manifested on and after November 2017, it is likely that his symptoms did, in fact, result in a considerable or large impairment of health. Indeed, in May 2021, Dr. Ahmed noted that the Veteran's symptoms, including persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal and shoulder pain, nausea, vomiting, and sleep disturbance resulted in a considerable impairment of health. While the May 2021 DBQ reflects newly reported symptoms of nausea and vomiting that occurred four or more times a year, the Board notes that regurgitation and vomiting are similar in nature and the Veteran previously stated that his regurgitation occurred every other day. As such, the Board finds that the additional symptoms of nausea and vomiting reflected in the May 2021 DBQ are consistent with the type, severity, and frequency of the symptoms reflected in November 2017 which, as noted, warrants a 30 percent rating. The Board finds that a rating in excess of 30 percent is not warranted prior to or after November 2017, as the evidence does not reflect that the Veteran's GERD was manifested by or resulted in material weight loss, hematemesis, or melena with moderate anemia, all of which are contemplated by a higher, 60 percent rating. The Board also notes that the Veteran's symptoms are not shown to be productive of a severe, or very harmful or painful, impairment of health. In this regard, the Board finds probative that, despite the Veteran's myriad symptoms, Dr. Ahmed noted a considerable, but not severe, impairment of health as a result thereof. In this context, the Board notes that the ameliorative effects of medication cannot be considered in evaluating this claim and, yet, the evidence of record reflects that the Veteran has used medication to treat his GERD throughout the appeal period. The Board remanded this appeal in July 2020 in order for a VA physician to identify the severity of the Veteran's symptoms while discounting the ameliorative effects of medication, if feasible. However, the Veteran did not report for the scheduled examination. Under 38 C.F.R. § 3.655(b), when a claimant fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. Under such circumstances, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the veteran lacked good cause to miss the scheduled examination. Turk v. Peake, 21 Vet. App. 565 (2008). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. 38 C.F.R. § 3.655(a). The record reflects that the Veteran was properly notified and reminded of the VA examination that was scheduled in March 2021. See March 2021 contact history. However, neither the Veteran nor his representative have provided an explanation as to why he did not report for the examination. The Board notes that the requested examination was necessary to establish entitlement to a higher rating in this case without consideration of the ameliorative effects of medication and the Veteran has failed to provide good cause for his failure to report for the scheduled examination. Nevertheless, as discussed above, the Board has resolved reasonable doubt in favor of the Veteran and determined that the evidence of record supports the grant of a 30 percent rating for GERD from November 13, 2017, but no earlier. The Board finds that any argument or claim of entitlement to a higher rating prior to or after November 13, 2017, is without merit, as it is not supported by the evidence of record and the Veteran failed to report to an examination that may have provided relevant evidence. See 38 C.F.R. § 3.655(b). Accordingly, for the foregoing reasons, the evidence weighs against the grant of an initial rating in excess of 10 percent for service-connected GERD but, from November 13, 2017, the evidence supports the grant of a 30 percent rating, but no higher. In making the foregoing determinations, all reasonable doubt has been resolved in favor of the Veteran. Mike Sobiecki Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Turnipseed, 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.