Citation Nr: A25035641 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240418-433929 DATE: April 17, 2025 ORDER Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease is denied. FINDING OF FACT Throughout the period on appeal, the Veteran's gastroesophageal reflux disease manifested as pyrosis, reflux, regurgitation, and sleep discomfort without nausea, vomiting, substernal or arm or shoulder pain, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of considerable impairment of health. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent rating for gastroesophageal reflux disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.20, 4.27, 4.114, Diagnostic Code 7399-7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from November 1987 to October 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2024 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The rating decision on appeal constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In December 2023, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a March 2023 decision. In April 2024, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior March 2023 rating decision. Therefore, the Board may only consider the evidence of record at the time of the March 2023 rating decision. 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 March 2023 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review 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 claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The Board is cognizant of the recent decision issued by the United States Court of Appeals for Veterans Claims (Court) in the case of Williams v. McDonough, 37 Vet. App. 305 (2024). There, the Court held, in essence, that the Board must refrain from deciding a case until the case proceeds to the point where a docket switch is no longer permitted under the terms of 38 C.F.R. § 20.202(c)(2). In this case, a docket switch is no longer permitted under the terms of 38 C.F.R. § 20.202(c)(2) as it is more than one year from the date that the AOJ mailed notice of the decision on appeal, and it is more than 60 days of the date that the Board received the April 2024 VA Form 10182. Therefore, the Board shall proceed with adjudication. Increased Rating Criteria Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. It is permissible to switch diagnostic codes to reflect more accurately a claimant's current symptoms. See Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011). 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 concern. 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. Francisco v. Brown, 7 Vet. App. 55 (1994). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Separate ratings can be assigned for separate periods based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claim. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease is denied. The Veteran generally contends that his gastroesophageal reflux disease is more severe than contemplated by the current rating. See April 2024 VA Form 10182. No specific arguments have been provided. Throughout the period on appeal, the Veteran's gastroesophageal reflux disease was rated by analogy as 10 percent disabling under Diagnostic Code 7399-7346 for an unlisted gastrointestinal disorder and a hiatal hernia. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" as follows: the first two digits will be selected from that part of the schedule most closely identifying the part, or system of the body involved, in this case, the neurological system, and the last two digits will be "99" for all unlisted conditions. Then, the disability is rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27. Under Diagnostic Code 7346, a 10 percent rating is warranted with two or more of the symptoms for the 30 percent rating of less severity. A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain and productive of considerable impairment of health. A 60 percent rating is warranted where 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. 38 C.F.R. § 4.114. Dysphagia is defined as difficulty in swallowing. Dorland's Illustrated Medical Dictionary, 587 (31st ed. 2007). Pyrosis is defined as heartburn. Id. at 1587. Hematemesis is defined as the vomiting of blood. Id. at 842 (31st ed. 2007). Melena is defined as the passage of dark-colored feces stained with blood pigments or with altered blood. Id. at 1142. Turning to the evidence, in a July 2021 Statement in Support of Claim (VA Form 21-4138), the Veteran states that his gastroesophageal reflux disease symptoms include heartburn and acid reflux monthly. He reported regurgitation after eating large meals and having chest pain when he has a flare up. He stated that he must use over the counter Pepto-Bismol by weekly to help control his heartburn. During an October 2022 VA examination, the Veteran was diagnosed with gastroesophageal reflux disease, gastric ulcer and chronic gastritis. The Veteran did not report taking continuous medication. The Veteran reported having flare ups when taking Advil or spicy foods. He reported symptoms that included persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal pain, sleep disturbance caused by esophageal reflux four or more times a year. There was no esophageal stricture, spasm of esophagus (cardio spasm or achalasia), or an acquired diverticulum of the esophagus reported. The examiner noted there were no other pertinent complications or conditions. The examiner also noted that it did not impact his ability to work. In a March 2022 primary care note, it was reported that the Veteran denied abdominal pain, nausea, vomiting, diarrhea and blood in the stool. After a review of the evidence of record, the Board finds that a rating in excess of 10 percent for the Veteran's gastroesophageal reflux disease is not warranted. The clinical evidence does not establish that the Veteran's symptoms were accompanied by substernal or arm or shoulder pain and productive of considerable impairment of health. Further, the evidence does not show symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. Although the Veteran complained of pyrosis, reflux and regurgitation, and sleep disturbance, it was not accompanied by pain of the arm or shoulder pain. Further, the Veteran did not complain of nausea or vomiting. The Veteran also did not report material weight loss, hematemesis and anemia. Further, in a March 2022 treatment note, the Veteran denied experiencing abdominal pain, nausea, vomiting, diarrhea and blood in the stool as gastrointestinal symptoms. In addition, the Board has not considered the ameliorative effects of the Veteran's medication in evaluating the severity of his gastroesophageal reflux disease as this is prohibited. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Therefore, a rating higher than 10 percent is not warranted at any time during the pendency of this appeal. In addition, 38 C.F.R. § 4.113 provides that there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title "Diseases of the Digestive System," do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14. Additionally, 38 C.F.R. § 4.114 indicates that ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive, will not be combined with each other. Rather, 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 evaluation. Therefore, as the Veteran's gastroesophageal reflux disease is evaluated under Diagnostic Code 7346, he is not entitled to a higher or separate rating under any other potentially applicable diagnostic code. In making its determination in this case, the Board acknowledges the Veteran's belief that his gastroesophageal reflux disease is more severe than the current rating reflects. While the Board recognizes that the Veteran is competent to provide statements regarding his observable symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Rather, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability considering the rating criteria to be more persuasive than the Veteran's reports regarding the severity of his condition. The Board has also considered whether a staged rating under Fenderson v. West, supra is appropriate for the Veteran's service-connected gastroesophageal reflux disease; however, the Board finds that his symptomatology referable to such disability has been stable throughout the period on appeal. The Veteran has not raised any other issues nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 8 Vet. App. 366 (2017). Additionally, the Board has considered whether an inferred claim for a total disability based upon individual unemployability (TDIU) has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran's employment status is not clear from the record. The October 2022 VA examiner noted that the Veteran's gastroesophageal reflux disease did not have a functional impact on his ability to work. Also, the Veteran did not indicate that he could not work because of his gastroesophageal reflux disease. As such, the Board finds that a claim for a TDIU is not raised in connection with the instant appeal. See Rice v. Shinseki, supra. Accordingly, the Board finds that an initial rating in excess of 10 percent for gastroesophageal reflux disease is not warranted. The appeal is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Adeyemi, 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.