Citation Nr: A25035357 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240415-433067 DATE: April 16, 2025 ORDER Entitlement to a rating of 30 percent, but no higher, for gastroesophageal reflux disease (GERD) is granted. FINDING OF FACT Throughout the rating period on appeal, the Veteran's GERD more nearly approximated recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health; it did not more nearly approximate symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. CONCLUSION OF LAW Throughout the rating period on appeal, the criteria for a disability rating of 30 percent for GERD, but no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.2, 4.3, 4.7, 4.21, 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1990 to March 1994 and received an honorable discharge. This matter is before the Board following his appeal of a March 2024 higher-level review decision, which had continued an October 2023 rating decision that had increased the Veteran's rating for GERD from 0 to 10 percent, effective September 2023. See Rating Decision, October 2023. In the April 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the October 2023 agency of original jurisdiction (AOJ) decision, which was later subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, the Board did not consider it as part of this appeal. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted after the AOJ's decision that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify that evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Entitlement to a rating of 30 percent, but no higher, for gastroesophageal reflux disease (GERD) from August 24, 2021, is granted. The Veteran contends that he is entitled to a 30-percent rating from August 24, 2021, based on an increase in the severity of his symptoms within one year from the effective date of his grant of service connection. See VA 21-4138 Statement In Support of Claim, received November 2023. He asserts, through his representative, that the lay statements and VA examinations in the record support the rating criteria for a 30-percent evaluation. Id. By way of background, the Veteran was initially assigned a 0 percent rating for GERD, effective August 24, 2021. See Rating Decision, November 2021. However, following a supplemental claim, the Veteran's rating was increased to 10 percent, effective September 2023. See Rating Decision October 2023. Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects their ability to function under the ordinary conditions of daily life, including employment, by comparing their symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1, 4.2, 4.41. However, where an increase in the disability rating, rather than the propriety of the initial rating, is at issue, the present level of disability is of primary importance, and past medical reports should not take precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Regardless of whether an appeal stems from disagreement with the initial rating assigned following an award of service connection or from disagreement with the rating assigned following a claim for increase, separate ratings can be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). Prior to May 2024, the schedule of ratings for the digestive system did not contain a separate rating for GERD. The Veteran's initial claim originated before that date, and his GERD is rated by analogy to 38 C.F.R. § 4.114, Diagnostic Code (DC) 7346, for hiatal hernia. 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. A 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." Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/considerable (last updated April 2025). "Severe" is defined as "very painful or harmful." Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/severe (last updated April 2025). In this case, the Veteran's GERD manifested in persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal pain and shoulder pain, productive of considerable impairment of health. In November 2021, the Veteran attended a VA examination, during which the examiner noted diagnoses for GERD and Barrett's Esophagus. The examination report states that the Veteran was taking a proton pump inhibitor for reflux, but that he had no history of esophageal strictures or other complications. No other symptoms were listed in the November 2021 VA examination. The Veteran submitted a statement in August 2021, which listed symptoms such as reflux, regurgitation of stomach contents, chest pain, arm pain, and shoulder pain during GERD flare-ups. See Form VA 21-4138, received August 2021. The Veteran stated, in that document, that his sleep is frequently interrupted by his GERD symptoms. The Veteran is competent to report his symptoms for the purpose of rating decisions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining that lay evidence can be competent and sufficient to establish a diagnosis of a condition when it is describing symptoms at the time that support a later diagnosis by a medical professional). It is unclear why all the symptoms described in the Veteran's lay statement were not recorded during the November 2021 VA examination. However, a later VA examination did record those symptoms. The Esophageal Conditions Disability Benefits Questionnaire completed in September 2023 noted dysphagia, pyrosis, reflux, regurgitation, nausea, vomiting, sleep disturbances, substernal pain, and shoulder pain. See C&P Examination, September 2023. During the September 2023 VA examination, the Veteran did not have hematemesis or melena with moderate anemia. Resolving doubt in favor of the Veteran, the documentation supports a finding that he had persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health-consistent with a 30-percent rating under DC 7346 throughout the rating period on appeal. (Continued on the next page) ? The Board notes that the Veteran submitted an independent medical examination in this case, which advocates for a 60-percent rating, "based on symptom combinations productive of severe impairment of health." Medical Treatment Record - Non-Government Facility, received June 2023. However, a 60-percent rating under DC 7346 is not warranted unless there are "symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health." Those symptoms are not present in the record, even within the independent examiner's report. In this regard, the September 2023 examination noted that the Veteran's GERD did not impact his ability to work and his symptoms were not indicative of severe impairment of health. Thus, the Veteran's GERD symptoms did not more nearly approximate the 60-percent rating criteria under DC 7346. The Board also notes that the updated rating criteria that became effective in May 2024 would not benefit the Veteran because he would be ineligible for a compensatory rating without a history of esophageal strictures. The Veteran does not have a history of esophageal strictures. As a result, the prior rating criteria under DC 7346-rather than the current criteria under DC 7203-have been applied. S. Merrick Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Musgrave, Stan M. 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.