Citation Nr: A25035397 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 231030-390832 DATE: April 17, 2025 ORDER A disability evaluation in excess of 10 percent for service-connected gastroesophageal reflux disease (GERD) is denied. FINDING OF FACT The Veteran's GERD, manifested by persistently recurring epigastric distress with dysphagia, pyrosis, substernal arm pain, and regurgitation, did not more nearly approximate symptoms that were productive of considerable impairment of health. CONCLUSION OF LAW The criteria for a disability evaluation in excess of 10 percent for service-connected GERD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, Diagnostic Code 7346 (2023). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty in the United States Army from August 1992 to October 1992, and March 1993 to April 1993, with periods of service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2023 Higher-Level Review (HLR) rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is an agency of original jurisdiction (AOJ). In that decision, the RO continued the initial 10 percent disability rating for service-connected GERD. In an October 2023, VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran selected the Direct Review docket and specifically identified disagreement of the rating evaluation for service-connected GERD. Therefore, the Board may only consider the evidence of record at the time of the underlying July 2023 AOJ rating decision which was the subject of the February 2024 AOJ HLR rating decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 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. Entitlement to a disability evaluation in excess of 10 percent for service-connected gastroesophageal reflux disease (GERD) The Veteran is seeking a higher rating for service-connected GERD because he does not feel the 10 percent rating accurately reflects the severity of his disability. The Veteran's service-connected GERD is rated by analogy to hiatal hernia as 10 percent disabling under 38 C.F.R. § 4.114, Diagnostic Code 7346. Ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342 and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. 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. 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. 38 C.F.R. § 4.114, Diagnostic Code 7346. The rating code applicable to GERD does not define the terms "considerable" or "severe." Merriam-Webster defines the term "considerable" to mean "large in extent or degree," and the term "severe" to mean "very painful or harmful." See, e.g., "considerable" and "severe," Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary. Although the rating criteria for digestive disabilities was recently amended on May 19, 2024, this change did not go into effect until after the period on appeal. Accordingly, the former criteria apply. 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"). For the reasons that follow, the Veteran's GERD manifested in two or more symptoms for the 30 percent evaluation, but of less severity. Turning to the medical evidence of record, on VA esophageal conditions examination in March 2021, the Veteran reported he elevated the head of his bed and had adjusted his diet to avoid spicy foods and tomato sauces. He said that he frequently woke up at night, causing him sleepiness during the day. He added that he began waking up at night with symptoms of indigestion, burning sensation in the throat, and the feeling of needing to vomit. The examiner marked that the Veteran was diagnosed with GERD in 2011. He was taking over-the-counter Tums and Alka-Seltzer chews as needed for his symptoms. The examiner noted that the Veteran had persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal pain, and sleep disturbances caused by GERD 4 or more times per year, lasting less than one day. There was no evidence of esophageal stricture, spasm, or diverticula. There were no other findings, complications, conditions, signs or symptoms, including vomiting, material weight loss, hematemesis, melena, or symptoms productive of severe impairment of health. The examiner noted that the esophageal condition impacted the Veteran's ability to work, in that he had daytime fatigue caused by frequent sleep interruptions. The examiner did not mark that the Veteran's GERD produced symptoms productive of considerable or severe impairment of health. In March 2022, after records reviewed and a phone interview with the Veteran, the VA examiner noted the records revealed the Veteran had GERD diagnosed in 1999. The Veteran described symptoms of regurgitation, heartburn, and nausea since 1999, and that his symptoms continue to occur 3-4 times per week at the time of the examination. The Veteran reported continuously taking omeprazole for GERD at the time of examination. The examiner noted that the Veteran's symptoms included pyrosis, reflux, regurgitation, sleep disturbance caused by esophageal reflux 4 or more times per year lasting less than one day, and episodes of nausea 4 or more times per year lasting less than one day. There was no evidence of esophageal stricture, spasm, or diverticula. There were no other findings, complications, conditions, signs, or symptoms, including vomiting, material weight loss, hematemesis, melena, or symptoms productive of severe impairment of health. The examiner noted that the esophageal condition did not impact the Veteran's ability to work. The examiner did not mark that the Veteran's GERD produced symptoms productive of considerable or severe impairment of health. In January 2023, after a review of records only, a VA examiner noted the Veteran's March 2022 phone interview and his statements about his symptomatology at that time. The examiner did not obtain any additional evidence from the Veteran as to his symptomatology at the time of the examination report. The clinician noted that the Veteran's symptoms included pyrosis, reflux, regurgitation, sleep disturbance caused by esophageal reflux 4 or more times per year lasting less than one day, and episodes of nausea 4 or more times per year lasting less than one day. There was no evidence of esophageal stricture, spasm, or diverticula. There were no other findings, complications, conditions, signs, or symptoms, including vomiting, material weight loss, hematemesis, melena, or symptoms productive of severe impairment of health. The examiner noted that the esophageal condition did not impact the Veteran's ability to work. The examiner did not mark that the Veteran's GERD produced symptoms productive of considerable or severe impairment of health. With his February 2022 supplemental claim, prior to the grant of service-connection for GERD, the Veteran's attorney submitted a brief arguing that the Veteran's GERD warranted service connection and a 60 percent disability rating. The attorney added that the Veteran was prescribed Pantoprazole for treatment of GERD and otherwise copied the Veteran's February 2021 statement. The record also contains a "HIPAA Authorization for Use or Disclosure of Health Information By Trajector Legal, LLC, signed by the Veteran in October 2021. Notably, the Veteran authorized Trajector Legal, LLC to use or disclose all of his health information necessary for the adjudication of his claims and potential claims. The form further indicates that Trajector Legal may disclose this health information to "Veterans Claims, LLC and Fortis Legal, LLC or the Trajector Inc. subsidiary companies." Then, "In addition, Fortis Legal, LLC, Veteran Claims, LLC, and the Trajector Inc. subsidiary companies, may disclose and communicate all health information necessary to Trajector Legal, LLC for the adjudication of [the Veteran's] case." The Veteran subsequently submitted a January 2023 "Independent VA Rating Evaluation Regarding GERD" completed by C. Michael Bucci, a physician's assistant. Mr. Bucci stated that the Veteran's disability should be increased to 60 percent because the combination of his symptoms produce severe impairment of his health. There is no indication in the evaluation that Mr. Bucci examined and/or interviewed the Veteran or reviewed his claims file. He provided a general list of physical symptoms of GERD; emotional, psychological, and spiritual impacts on behavioral and social functioning related to chronic sleep disturbances associated with GERD; and abnormal physical anatomical defects and loss of normal GI function related to GERD. He recited the Veteran's January 2023 statement and concluded that the symptomatology aligned with a 60 percent evaluation for GERD. The examiner made no indications of any specific symptoms the Veteran was experiencing, other than to recite his January 2023 statement in support of his claim (described in detail below). Instead, Mr. Bucci attempted to assign a rating for the Veteran's GERD without contributing any actual medical rationale. Accordingly, the January 2023 "Independent VA Rating Evaluation" is afforded no probative value as to the current severity of the Veteran's service-connected GERD. Turning to the lay evidence of record, the Veteran submitted lay statements in support of his claim in February 2021 and January 2023. In February 2021, the Veteran reported symptoms including nausea, heartburn, back pain, regurgitation, acid reflux, sore throat with painful swallowing, difficulty swallowing, a feeling of food coming back up into my throat, vomiting, and coughing weekly. He said he used over the counter Tums and Maalox 4-5 times per week and was also prescribed Pantoprazole to control the heartburn. He noted he needed to avoid spicy and acidic foods and that lying down soon after eating, eating large meals, or eating late in the day or at night caused his regurgitation to be worse. He added that he gets chest pain when his GERD would flare up and that his sleep habits were affected. He reported using multiple pillows propping his head up to fall asleep, and that he still could only get 5 straight hours of sleep due to being awakened from his symptoms. He said that his symptoms had a profound effect on his overall health and well-being. In his January 2023 statement, the Veteran reported heartburn with acid reflux, regurgitation of stomach contents into his throat, difficulty swallowing, nausea, vomiting, nighttime choking due to regurgitation, changes in his voice with hoarseness, and tooth enamel damage from stomach acid going into his mouth at least once per day. He said he was prescribed Zantac twice per day. He noted that he cannot eat late in the day or at night, eat large meals, or lie down soon after eating, without worsening regurgitation. He additionally reported chest pain when his GERD flares up. He also said that he had vitamin deficiencies and must take vitamin supplements to make up for what he was lacking in nutrients. He reported that he could not sleep for more than 2 hours straight due to being awakened by GERD symptoms, and that, due to his lack of sleep, he has difficulty concentrating, daytime fatigue, mood changes, low sex drive, depressed mood, frequent yawning, bouts of clumsiness, hard time staying on task and concentrating, memory trouble, self-neglect in personal care, having moments where he doesn't care about much of anything, and trouble controlling his emotions and actions. Finally, he asserted that he was told by his provider that he has lower esophageal sphincter dysfunction and esophagitis. VA treatment records show that the Veteran has made numerous statements that contradict his statements made in pursuit of his claims for benefits. It is reasonable to assume that the Veteran would note considerable or severe symptomatology of his GERD at any point during the course of his treatment with the VA, but that is not shown. Notably, the Veteran had been receiving treatment for numerous non-service-connected disabilities at the time of the AOJ decision on appeal, including sleep apnea, an umbilical hernia, hyperlipidemia, cervical radiculopathy, plantar fasciitis, benign hypertension, bilateral hearing loss, diabetes mellitus type 2 (along with diabetic neuropathy and diabetic foot ulcer), and a noted history of noncompliance with medications. His service-connected conditions included left shoulder degenerative arthritis, left upper extremity carpal tunnel, and tinnitus. Regarding the Veteran's claim that GERD affects his sleep, his statements varied. First, he has reported waking up frequently at night due to GERD symptoms and getting no more than 2 hours of sleep due to GERD symptoms, then reported getting no more than 5 hours of sleep due to GERD symptoms. Notably, the Veteran has attributed his sleep disturbances to tinnitus, evidenced by a July 2023 statement in support of his unrelated claim for entitlement to service connection for insomnia wherein he reported his tinnitus (which he described as buzzing, hissing, ringing, and static) made it difficult for him to fall asleep. In pursuit of that claim, he reported getting less than 6 hours of sleep and being awakened multiple times throughout the night. However, VA treatment records show that in January 2023, the same month the Veteran submitted his statement saying he slept less than 2 hours per night due to GERD, the Veteran reported sleeping 8-10 hours per night but not feeling rested enough. He reported waking up a few times at night to use the bathroom and that it took him 15 minutes to go back to sleep. In March 2023, the Veteran again reported sleeping a lot - averaging about 12 hours per night. In July 2023, the Veteran reported that he was sleeping well, averaging 12 hours per night. Additionally, the Veteran has been diagnosed with sleep apnea since July 2012, which is not service connected. These statements within the VA treatment records, which weren't made in pursuit of his claim for compensation, directly contradict the Veteran's statements that his GERD kept him awake or caused him trouble sleeping. Regarding any claimed weight loss: the Veteran began using Ozempic in December 2020, and was noted to have lost 30 pounds by April 2021 additionally in part due to diet changes. The Veteran was also participating in the MOVE! Weight Management program by the VA. Accordingly, the Veteran's claim of unintentional weight loss is directly contradicted by his treatment records noting his very intentional weight loss. Regarding assertions of nausea and vomiting, the treatment records show some complaints in June 2022 of vomiting one to two times per week, which began three months prior, along with diarrhea and a painful umbilical hernia. At that time, the Veteran denied significant weight loss. The episodes of intermittent nausea and vomiting were occasionally associated with abdominal pain at the site of a ventral hernia that was repaired 15 years prior. The CT scan of his abdomen following this June 2022 visit showed a periumbilical hernia. The clinician referred to a recent upper endoscopy that was unremarkable. VA treatment records show that in December 2021, the Veteran requested an upper endoscopy and a colonoscopy because he was turning 50 years old. A copy of the upper endoscopy report was not associated with the claims file, but the clinician noted that the results were unremarkable. Further, in January 2023, the Veteran recounted that he had an upper endoscopy and that he was told everything was fine and he had no polyps or peptic ulcers. Certainly, if the Veteran was having symptoms at the level of the severity he describes, it is reasonable to infer that the endoscopy findings would have been other than unremarkable, as it is a well-known medical principle that this test provides objective evidence of reflux, GERD, stomach ulcers, and the like. The Veteran again complained of frequent nausea and vomiting in December 2022 and was seen in January 2023. He noted symptoms lasting for the past 5 months, and that his discomfort got worse when he was up and about, but everything went back to normal when he rested or laid down. A different January 2023 visit notes that the Veteran reported losing a lot of weight and that he was throwing up, which he believed was due to taking Ozempic. VA treatment records in February 2023 note the Veteran denied chest pain, dyspepsia, nausea, vomiting, or abdominal pain, but did report occasional constipation. Later that month, the Veteran continued to deny chest pain, abdominal pain, nausea, and vomiting, but also denied constipation, hematemesis, melena, and pyrosis. Besides the few instances in 2022 of nausea and vomiting, the Veteran routinely denied gastrointestinal issues throughout the course of his treatment for his numerous other health conditions. Additionally, there is no evidence to support the Veteran's claims that he experienced vitamin deficiencies related to his diet, that he was taking vitamins for any alleged deficiencies, that he experienced tooth decay due to stomach acid contents rising into his mouth, that he had lower esophageal sphincter dysfunction, or that he had esophagitis. The Veteran is competent to report readily observable symptoms, including nausea, heartburn, vomiting, sore throat, painful swallowing, coughing, and sleep disturbances. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran's statements regarding his GERD symptomatology while in pursuit of his claim for compensation are internally inconsistent and unsupported by numerous treatment records and other objective medical evidence, as discussed in detail above. Accordingly, the Veteran's lay statements are not credible and are not considered probative. See Caluza v. Brown, 7 Vet. App. 498 at 511 (1995) ("The credibility of a witness can be impeached by a showing of...inconsistent statements."); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (Board may reject such statements of the veteran if rebutted by the overall weight of the evidence). As determined above, the Veteran is not credible to describe his GERD symptoms due to internally inconsistent reports. While the VA examiners relied on the Veteran's self-reported history and current symptoms in addressing the level of severity of his GERD, and the examiners each marked symptoms of the 30 percent rating, each examiner still found that the Veteran's GERD symptoms were not productive of considerable or severe impairment of health. Because the Veteran's statements in support of this claim are very inconsistent with the Veteran's reports to medical providers regarding treatment for other disabilities, the Veteran's statements regarding the severity of his GERD symptoms are not persuasive. In this regard, the Veteran's statements made to treatment providers are more persuasive than the statements made in pursuit of monetary benefits. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (Board can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Based on the totality of the record and the pertinent evidence identified above, the Board concludes that the Veteran's statements made in pursuit of a higher disability rating in this case are not credible. Accordingly, the Veteran's inconsistent statements are not afforded probative value and are outweighed by the medical evidence in this case. Accordingly, the probative evidence of record shows the Veteran's GERD manifested in two or more symptoms for the 30 percent evaluation (pyrosis, reflux, substernal arm pain, and regurgitation) of less severity throughout the appeal period, corresponding to the criteria for a 10 percent rating under Diagnostic Code 7346. In reaching this decision, the Board cannot consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56 (2012). Here, the previous version of Diagnostic Code 7346 that was in effect prior to May 19, 2024, does not consider the ameliorative effects of medication. Regarding medication use for control of GERD symptoms, the Veteran has stated that he has used over-the-counter medications as needed and that he has been prescribed medications to control his GERD as well. VA treatment records note that the Veteran was prescribed pantoprazole as early as September 2010, and he was taking omeprazole prior to that time but found it to be ineffective. However, in March 2011, the Veteran was noted to have stopped taking the medication and that he had an umbilical hernia repaired. April 2011 treatment records note that the Veteran stopped taking the pantoprazole and that his GERD was under control. As of the July 2023 rating decision, the Veteran's active outpatient medications list included famotidine (generic for Zantac) for acid reflux, but no other medications related to treating GERD symptoms. As for the Veteran's assertion that his GERD requires the use of Omeprazole, it is also available over the counter and may not have appeared on the Veteran's active medications lists. Nonetheless, treatment records note a history of non-compliance with medications on the Veteran's active problems list. At his March 2021 VA examination, the Veteran reported that he had previously been prescribed medication for management of his GERD symptoms, and that the medications helped so he stopped taking the medication due to his symptoms subsiding. He reported that, after his GERD symptoms returned, he began to take Tums and Alka-Seltzer on an as needed basis, but did not report continuous use of any other medications, including pantoprazole, omeprazole, or famotidine (medications previously prescribed to the Veteran for GERD symptoms). Additionally, in his February 2022 statement, the Veteran said he used Tums and Maalox 4-5 times per week to control severe heartburn, but did not indicate that the medications did in fact control his heart burn or result in any reduction of symptoms. The Veteran himself has not asserted that the medications he uses for GERD symptoms, whether prescribed or over the counter, provide him any relief. In an October 2023 brief, the Veteran's attorney made the statement that "it is apparent that the Veteran's symptoms would drastically increase in severity without the use of prescribed medication," but did not provide any reasoning or assert that the Veteran's symptoms reported in his January 2023 statement (which was copied word for word and put into the brief), or his prior statements, described the Veteran's GERD symptoms after experiencing any relief from medications. Further, the record contains no indication that the Veteran's descriptions of his GERD symptoms referred only to symptoms that remained after he used medication, which would necessitate the Board to discount the ameliorative effects of the medication pursuant to Jones. Thus, the record as a whole does not provide clarity on whether there are any ameliorative effects when the Veteran uses medication for his GERD, particularly when considering that the Veteran's statements as to the severity of his GERD are not credible for the reasons set forth above. A higher 30 percent rating under Diagnostic Code 7346 is not warranted unless there is persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. As discussed in detail above, the evidence of record shows that, while the Veteran self-reported symptoms of a greater severity, his statements are not credible and were in direct contradiction to his other statements of record. The competent medical evidence does not show considerable impairment of health due to GERD symptoms, and VA examiners came to the same conclusion. Thus, the Veteran's GERD did not more nearly approximate persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A higher 30 percent rating under Diagnostic Code 7346 is not warranted. (Continued on the next page) ? In conclusion, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 10 percent for the service-connected GERD, and the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Feroce 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.