Citation Nr: 23019282 Decision Date: 03/29/23 Archive Date: 03/29/23 DOCKET NO. 19-05 104 DATE: March 29, 2023 ORDER Entitlement to disability rating in excess of 10 percent for the Veteran's gastroesophageal reflux disease (GERD) is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for the Veteran's back disability is remanded. A disability rating in excess of 20 percent for the Veteran's right lower extremity radiculopathy is remanded. A disability rating in excess of 20 percent for the Veteran's left lower extremity radiculopathy is remanded. FINDING OF FACT The Veteran's GERD manifests as two or more of the symptoms for the 30 percent evaluation, but of less severity. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for the Veteran's GERD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service in the United States Army from June 1979 to August 1979, from October 2004 to January 2006, from September 2008 to December 2009, from March 2011 to February 2013, from June 2013 to September 2013, and from December 2013 to January 2015, with additional service in the Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision of the Department of Veterans' Affairs (VA). In the January 2019 substantive appeal, the Veteran requested a hearing before the Board, and a hearing was scheduled for March 23, 2022. The Veteran failed to attend the hearing not provide a reason why or request for postponement; accordingly, the case will proceed as if the request for the hearing was withdrawn. 38 C.F.R. § 20.704. Neither the Veteran nor his 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) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). GERD The Veteran's GERD is rated by analogy under Diagnostic Code 7346, hiatal hernia. 38 C.F.R. § 4.114, Diagnostic. Pursuant to Diagnostic Code 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 Veteran received a VA examination for GERD in February 2017. His symptoms began when he woke up and would cause a burning pain in his throat. His symptoms worsened at night. The examiner noted that the Veteran's symptoms consisted of persistent recurrent epigastric distress, reflux, and bloating. His esophageal reflux also caused sleep disturbances more than 4 times per year, with each episode lasting for less than a day. The Veteran's VA treatment records documented similar symptoms. A December 2018 record noted that he experienced more symptoms of bloating and burping, with intermittent dysphagia. He also had to regurgitate his food at times if he did not chew it properly. A January 2019 treatment record noted his increased episodes of reflux and bloating. He denied painful swelling in his throat but felt that at times food would get stuck in his throat. He also denied abdominal pain. His more recent records continued to document episodes of acid reflux and heartburn. He consistently denied experiencing nausea and vomiting. In June 2019, he reported acid reflux and heartburn and denied abdominal pain, bloating, nausea, and vomiting. In December 2019, he reported symptoms "only a couple of times," and stated that he did not eat after 6:00pm, did not eat greasy or fatty foods, and limited his daily coffee intake but had "been doing well." At February 2020 and October 2020 general care appointments, he denied abdominal or reflux concerns. At a February 2021 gastroenterology consult, the Veteran reported "feeling quite well without reflux symptoms, bloating." In May 2021, December 2021, May 2022, August 2022, and September 2022 general medical appointments, the Veteran denied abdominal or reflux concerns. A March 2022 general inpatient note showed a history of one month of abdominal bloating and pain and this was specifically attributed to an e. coli infection, not his GERD. The Board finds that a disability rating higher than 10 percent for the Veteran's GERD is not warranted. The evidence shows that the Veteran experiences symptoms contemplated by the 30 percent rating including recurring epigastric distress with dysphagia regurgitation issues. However, the evidence does not show that these symptoms are accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, as required for the 30 percent rating. The Veteran's disability is appropriately rated by the 10 percent rating which contemplates 2 or more symptoms of the 30 percent rating, but less severe. The Veteran's GERD is rated by analogy, which means that all of the objective criteria need not be shown for the higher rating. Stankevich v. Nicholson, 19 Vet. App. 470 (2006). Here, the Veteran's GERD symptoms are contemplated by the list in the 30 percent criteria other than bloating, which is not listed. Regardless, his GERD symptoms do not combine to be productive of considerable impairment of health. "Considerable" is defined as "large in extent or degree." Merriam-Webster's Collegiate Dictionary 267 (11th ed. 2012). The record does not show that the Veteran's overall health is impacted by his GERD symptoms at all. Instead, the record shows that the symptoms existed but were not frequent, and that overall he was doing better and at times not having symptoms at all. The Board also considers the other symptoms reported by the Veteran in the lay and medical evidence. The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His consistent reports of bloating and stomach gas are considered. Nevertheless, the evidence does not show that the Veteran's disability rises to the severity of the criteria set forth in the 30 percent rating or is severe enough to rise to an analogous level. The Veteran denied experiencing nausea and vomiting. Likewise, the February 2017 VA examiner concluded that his GERD symptoms did not interfere with his ability to work. The Veteran has also not submitted any lay statements that describe his symptoms as causing severe impairment of health. A 30 percent rating under DC 7346 is not warranted. REASONS FOR REMAND 1. Back Disability The Veteran received a VA examination in September 2018 for his back disability, but the Board finds that the examination was inadequate. The Veteran reported experiencing flare-ups that caused inactivity and worsening symptoms. The examiner failed to opine how the Veteran's range of motion would be impacted during a flare and found there was no significant limitation in his functional ability, despite the Veteran's lay description. Therefore, to fully assess the severity of the Veteran's disability, specifically the impact of flare-ups, the Board finds that a remand for a new VA examination is necessary. Sharp v. Shulkin, 29 Vet. App. 26 (2017). 2. Bilateral Lower Extremity Radiculopathy The Veteran's disability ratings for his bilateral lower extremity radiculopathy are inextricably intertwined with his back increased rating claim because they are neurological complications of his back disability. Accordingly, his bilateral lower extremity radiculopathy disability ratings are also remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his back disability and bilateral lower extremity radiculopathy. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a. Full range of motion testing must be performed where possible. The joint involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain the basis for this decision. b. If the Veteran is not experiencing a flare-up at the time of the examination, the VA examiner should provide an opinion using other manners, such as other medical evidence and the Veteran's lay statements or explain why this is not possible. It is insufficient for the VA examiner to simply state that because the Veteran is not examined during a flare-up an opinion cannot be provided without being speculative. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. The examiner must provide all findings, along with a complete rationale for any opinions provided. 2. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Brunot, 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.