Citation Nr: A25035393 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240722-456173 DATE: April 16, 2025 ORDER An initial rating of 30 percent for service-connected gastroesophageal reflux disease (GERD) is granted, subject to the regulations governing the payment of monetary awards. An initial rating in excess of 10 percent for service-connected depressive disorder is denied. FINDINGS OF FACT 1. The Veteran's GERD is manifested by persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal, arm and shoulder pain; it is also shown that the Veteran's symptoms have been productive of considerable impairment of health. 2. The severity, frequency, and duration of the Veteran's depressive disorder symptoms did not more closely approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 30 percent, but no higher, for service-connected GERD has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b), 4.1, 4.20, 4.21, 4.27, 4.114, Diagnostic Codes 7399-7346 (2023). 2. The criteria for a disability rating in excess of 10 percent for service-connected depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9435. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1992 to October 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2023 rating decision and January 2024 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Regarding the depressive disorder claim, in April 2023, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of an April 2022 rating decision which had granted service connection for a depressive disorder, rated 10 percent, effective March 25, 2022. In August 2023, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal for the depressive disorder claim, which considered the evidence of record at the time of the prior April 2022 rating decision. Regarding the GERD claim, in August 2023, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested review of a November 2022 rating decision which had granted service connection for GERD, rated 10 percent, effective July 1, 2022. In January 2024, AOJ issued the supplemental claim decision on appeal for the GERD claim, which continued the 10 percent rating assigned for that disability based on the evidence of record at the time of that decision. In the July 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 April 2022 AOJ decision, which was subsequently subject to higher-level review, for the depressive disorder claim and the January 2024 supplemental claim decision for the GERD claim. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision for the depressive disorder claim, which was subsequently subject to higher-level review, the Board did not consider it in its decision. Similarly, if evidence was submitted after the AOJ decision on appeal for the GERD claim, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Finally, as an introductory matter, it is noted that on July 29, 2024, the Veteran filed two, separate VA Forms 21-526EZ, requesting service connection and increased ratings for various disabilities. This claim included a request for an increased rating claim for his service-connected depressive disorder. In November 2024, the AOJ issued a rating decision that addressed the July 2024 claim. The Veteran was notified of this decision in December 2024; in that letter, the AOJ stated, "Please be advised, your claim for depressive disorder will not be addressed on this rating. This condition is currently being handled by our Appeals Department." Thus, the AOJ did not adjudicate the Veteran's July 2024 claim for an increased rating for his depressive disorder. Although the Veteran has appealed to the Board the matter of the initial rating to be assigned for his depressive disorder, which stems from a March 2022 claim, he is not precluded from filing an increased rating claim if he feels his disability has worsened since the time of the rating decision that is under review. As noted above, the Veteran has appealed an August 2023 HLR decision for the depressive disorder claim. This decision considered the evidence of record at the time of a prior April 2022 rating decision, and the Board is likewise limited to reviewing the evidence at the time of the April 2022 rating decision for the depressive disorder claim. Thus, it was appropriate for the Veteran to file an increased rating claim for his depressive disorder in July 2024 and he may resubmit the claim to the AOJ or notify the AOJ that the issue is still pending. 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. Part 4. Separate diagnostic codes identify the various disabilities. Id. When 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Id. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Entitlement to an initial rating in excess of 10 percent for service-connected GERD The Veteran was granted service connection for GERD and assigned an initial 10 percent rating in a November 2022 rating decision. As outlined above, the Veteran has continuously pursued an increased initial rating for his service-connected GERD. Specifically, he and his representative contend a 60 percent disability rating is warranted due to a combination of symptoms productive of severe impairment of health. See July 2024 Third Party Correspondence. During the period relevant to the appeal, GERD was not specifically listed in the rating schedule. Where a veteran has been diagnosed as having a specific condition and the diagnosed condition is not listed in the Ratings Schedule, the diagnosed condition will be evaluated by analogy to closely related diseases or injuries in which not only the functions affected, but the anatomical localizations and symptomatology, are closely analogous. 38 C.F.R. § 4.20. In this case, the Veteran's diagnosis of GERD was not specified in the Rating Schedule. Thus, the Veteran was rated by analogy under Diagnostic Codes 7399-7346. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Diagnostic Code 7399 is a general reference to the rating criteria for disabilities of the digestive system whereas Diagnostic Code 7346 provides the rating criteria for hiatal hernia. Under Diagnostic Code 7346 (as it was in effect at the time of the rating decision being reviewed and prior to May 19, 2024, when the rating schedule for the digestive system was revised), a 10 percent rating is warranted when there is a hiatal hernia with two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent disability evaluation is contemplated for persistently recurrent epigastric distress with dysphagia (difficulty in swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating is warranted for symptoms of pain, vomiting, material weight loss and hematemesis (vomiting of blood) or melena (blood in stool) with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114. The terms "severe impairment of health" and "considerable impairment of health" are not defined in the rating schedule. For reference, "considerable" is defined as "large in extent or degree." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 267 (11th ed. 2012). "Severe" is defined as "very painful or harmful." Id. at 1140. Additionally, rather than applying a mechanical formula, VA must evaluate all of the evidence to ensure its decisions are equitable and just. 38 C.F.R. § 4.6. In assigning a digestive rating under Diagnostic Codes 7399-7346, the Board may not consider the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). The rating criteria under Diagnostic Code 7346 are neither successive nor cumulative. See Tatum v. Shinseki, 23 Vet. App. 152, 155 (2009); see also Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006). However, the Board notes that the rating criteria associated with the 30 percent rating are phrased in the conjunctive. See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991) (the use of the conjunctive "and" indicates that all the conditions listed must be met). Thus, for a 30 percent rating, persistent recurrent epigastric distress; dysphagia; pyrosis; regurgitation; and substernal, arm, or shoulder pain must be shown. Turning to the evidence of record, the Veteran's VA treatment records include treatment for GERD to include continuous medication. Additionally, the Veteran reported his GERD symptoms impact his ability to sleep. See February 2022 Psychology note. The Veteran was first afforded a VA examination in July 2022. The Veteran reported experiencing heartburn after eating, with acid reflux in his throat and burning in his chest. Furthermore, he experienced nausea and anxiety. The VA examiner noted the Veteran took continuous medication for his GERD. The examiner further noted the Veteran's symptoms included persistent recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal pain, sleep disturbances occurring four or more times a year lasting less than one day, and nausea. The Veteran did not have an esophageal stricture, spasm of the esophagus or an acquired diverticulum of the esophageus. The examiner did include that the Veteran's GERD impacted his ability to work in that his current employment as a lead HVAC technician required him to bend down to inspect problems or work done, which aggravated his reflux symptoms. The Veteran was afforded a subsequent VA examination in September 2023. The Veteran reported continued symptoms of pyrosis, acid reflux, dysphagia, regurgitation, nausea, substernal pain, sleep disturbance, vomiting, gasping during sleep, and abdominal pains. The Veteran further reported he was suffering socioeconomic loss as he had limited options for food. He also experienced a low sex drive, poor concentration and irritability. The Veteran was continuing to take continuous medication. The examiner noted the Veteran's symptoms included persistent recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal pain, arm pain, and shoulder pain, sleep disturbances occurring four or more times a year lasting ten days of more, and vomiting. The Veteran did not have an esophageal stricture, spasm of the esophagus or an acquired diverticulum of the esophageus. It was further noted that he did not have benign or malignant neoplasm or metastases. The examiner did include the Veteran's GERD impacted his ability to work in that he would have poor productivity at work due to being fatigued and irritable throughout the day due to a lack of sleep. The Veteran was most recently afforded a VA examination for this matter in December 2023. The Veteran reported that his symptoms remained persistent and he continued to take medication for his GERD. The examiner noted the Veteran's symptoms included persistent recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal pain, and sleep disturbances occurring four or more times per year lasting less than one day. Additionally, the Veteran did not have an esophageal stricture, spasm of the esophagus or an acquired diverticulum of the esophageus. It was further noted that he did not have benign or malignant neoplasm or metastases. Lastly, the examiner indicated the Veteran's esophageal conditions did not impact his ability to work. In separate remarks, the December 2023 VA examiner opined that the Veteran's GERD had not worsened to the point where it would impact his health. The examiner stated the Veteran had typical GERD symptoms that were managed with prescription drugs and that there was no evidence of severe symptoms in his claims file. In August 2023, the Veteran submitted a private medical opinion. The medical provider reviewed the Veteran's statement and opined that the Veteran's GERD symptoms more closely approximated a 60 percent disability rating under Diagnostic Code 7346. This opinion was based on a finding that the Veteran suffered from physical symptoms of GERD, health related emotional, psychological, and spiritual impacts on behavioral and social functioning related to sleep disturbances associated with GERD symptomatology, and abnormal physical defects and loss of normal gastrointestinal function related to GERD. Along with the private medical opinion, the Veteran filed an August 2023 VA Form 21-4138 Statement in Support of Claim. The Veteran reported he experienced heartburn with acid reflux, regurgitation, a sore throat and pain when swallowing, a feeling similar to a lump in his throat, chest pain that radiated down to his shoulder, abdominal pain, nausea, vomiting, frequent coughing, nighttime choking, voice changes and dark color stool. The Veteran further reported he often slept upright in a recliner and avoided certain foods and eating late at night. Due to lack of sleep, he reported having trouble concentrating, fatigue, mood changes, weight gain, low sex drive, irritability, depressed mood, frequent yawning, bouts of clumsiness, memory trouble, difficulty making decisions, difficulty controlling his emotions, and difficulty with social interactions or handling stressful situations. After a thorough review of the medical and lay evidence of record, the Board finds a 30 percent rating, but no higher, is warranted for service-connected GERD. The September 2023 VA examination noted the Veteran's symptoms included persistent recurrent epigastric distress; dysphagia; pyrosis; reflux; regurgitation; and substernal, arm, and shoulder pain, meeting the required symptoms for a 30 percent rating. Additionally, the Veteran's GERD shows "considerable impairment of health". The Veteran reports difficulty sleeping which causes disruptions in his mood, concentration, and decision making. Furthermore, his adjusted diet impacts his food choices and limits the time of day when he can eat. A higher 60 percent rating is not warranted because the Veteran's GERD symptoms do not include symptoms of material weight loss and hematemesis (vomiting of blood) or melena (blood in stool) with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114. While the Veteran displays symptoms of pain and vomiting, there are no signs of material weight loss, vomiting of blood, blood in stool, or anemia or a combination of symptoms that would produce severe impairment of health. The Board has considered the August 2023 private medical opinion. The medical provider reviewed the Veteran's August 2023 lay statement and found it to be representative of a 60 percent rating. See August 2023 Private medical opinion. However, it must be emphasized that it is the Board, not medical personnel, that is responsible for the assignment of the appropriate evaluation to a service-connected disability. See 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret the reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present"); Pierce v. Shinseki, 18 Vet. App. 440, 443 (2004) (assignment of rating to particular disability is question of fact subject to review under clearly erroneous standard). The purpose of a medical examination is to provide the rating specialist with the etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, as well as a full description of the effects of the disability upon the veteran's ordinary activity. 38 C.F.R. § 4.10. In short, the role of a medical professional in the determination of an appropriate disability evaluation is to provide the necessary underlying medical information upon which the evaluation of the level of impairment caused by the claimant's disability will be made. See 38 C.F.R. § 4.1 (providing that "accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition"). The private medical opinion, however, offers nothing by way of this information. The provider did not conduct an interview or examination of the Veteran; rather, they reviewed only the rating decisions of record as well as the Veteran's August 2023 lay statement. The Board acknowledges the argument of the Veteran and his representative. Specifically, that the Veteran's service-connected GERD warrants a 60 percent disability rating because he suffers from "severe impairment of health", however, while the Veteran has had to alter his diet and has difficulty sleeping, it is not shown that these result in severe impairment of health as required for a 60 percent rating. Additionally, as noted above, there are no signs of material weight loss, vomiting of blood, blood in stool, or anemia. Resolving all reasonable doubt in favor of the Veteran, a 30?percent rating, but no higher, for service-connected GERD is granted.? 38?U.S.C. §?5107(b);?38?C.F.R. §?3.102.? Entitlement to an initial rating in excess of 10 percent for service-connected depressive disorder The Veteran was granted service connection for his depressive disorder as secondary to his service-connected degenerative disc disease and thoracolumbar spine disability in an April 2022 rating decision. He was assigned an initial rating of 10 percent and, as outlined above, the Veteran has continuously pursued an increased initial rating for his depressive disorder. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). During the entire period on appeal, the Veteran's depressive disorder has been rated at 10 percent under Diagnostic Code 9435, which rates depressive disorder under the General Formula for Mental Disorders. The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 30 percent or higher. The Board concludes that the Veteran's symptoms have not caused the level of impairment required for a disability rating of 30 percent or higher. The Veteran's symptoms more closely approximated the symptoms associated with a 10 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 10 percent rating. Under Diagnostic Code 9435, a 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. VA treatment records include treatment for the Veteran's depressive disorder. In a February 2022 psychology note the Veteran reported feeling depressed after ending a romantic relationship and experiencing the death of a friend. The Veteran also reported consuming 7-8 alcoholic drinks per night. It was noted that the Veteran was involved with his church and a church affiliated support group. Furthermore, the Veteran portrayed motivation to seek treatment. A depression screen was performed, and the Veteran displayed moderate depression. Throughout the Veteran's VA treatment records, he denies suicidal and homicidal ideation. The Veteran provided a lay statement in March 2022 in support of his depressive disorder claim. The Veteran described experiencing pain related to his physical service-connected disabilities, limiting his ability to be active at work and in his daily hobbies. He reported often feeling overwhelmed and anxious. He expressed that his symptoms often interfered with his relationships. The Veteran was afforded a VA examination in April 2022. The examiner noted that although a mental condition had been diagnosed, the symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. The Veteran reported he was not in a relationship but was previously married and had recently been engaged but the relationship ended. The Veteran stated he had three adult daughters that he had a close relationship with. After leaving active service, the Veteran reported working at a post office as the lead electrician and HVAC technician for the last 24 years. The Veteran stated he did not have any prior suicide attempts but had a panic attack in 1997. The examiner noted the Veteran's associated symptoms included a depressed mood and that the Veteran had been seeing a VA psychologist for approximately two months due to sleep issues. The Veteran was described as pleasant and cooperative, well-groomed with good eye contact with normal speech rate and a normal affect. The Veteran denied suicidal or homicidal ideation. The Board finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 10 percent rating. The April 2022 VA examination stated the Veteran did not experience occupational and social impairment in the form of decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. Psychology notes in VA treatment records and the April 2022 VA examination indicate that the Veteran had depressed mood, substance use, and anxiety. During the April 2022 VA examination, the Veteran reported that he also experienced sleep issues related to his depressive disorder. However, it was also reported that the Veteran had strong social support in his church and relationship with his daughters. Furthermore, the Veteran has maintained employment for over 24 years. While the Veteran did experience symptoms contemplated by a 30 percent rating- depressed mood, anxiety, sleep impairment -the evidence overall does not demonstrate the level of impairment associated with a 30 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 10 percent rating. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 10 percent for depressive disorder. As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38?C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21?F.4th 776 (2021). A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brown, D. L. 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.