Citation Nr: 18124085
Decision Date: 08/07/18	Archive Date: 08/03/18

DOCKET NO. 15-26 480
DATE:	August 7, 2018
ORDER
From April 26, 2013, to July 9, 2015, entitlement to a rating of 10 percent, but no greater, for gastroesophageal reflux disease is granted, subject to the laws and regulations governing the payment of monetary benefits.
From July 10, 2015, entitlement to a rating of 30 percent, but no greater, for gastroesophageal reflux disease is granted, subject to the laws and regulations governing the payment of monetary benefits.
REMANDED
Entitlement to an initial rating in excess of 10 percent for lumbar strain is remanded.
FINDINGS OF FACT
From April 26, 2013, to July 9, 2015, the Veteran’s gastroesophageal reflux disease is characterized by regurgitation, chest pain, left arm pain, and stomach pain but is not characterized by considerable impairment in health.  
From April 26, 2013, to July 9, 2015, the Veteran’s gastroesophageal reflux disease is characterized by recurrent epigastric distress with pyrosis, regurgitation, and arm pain, which together are productive of considerable impairment of health.  
CONCLUSIONS OF LAW
From April 26, 2013, to July 9, 2015, the criteria for a disability rating of 10 percent, but no greater, for gastroesophageal reflux disease have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.114, Diagnostic Code 7346.
From July 10, 2015, the criteria for a disability rating of 30 percent, but no greater, for gastroesophageal reflux disease have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.114, Diagnostic Code 7346.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the United States Army from April 1984 to September 2006.  A hearing was not requested.
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4.  The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.
VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where 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 for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.”  Hart v. Mansfield, 21 Vet. App. 505 (2007).
When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
1. From April 26, 2013, to July 9, 2015, entitlement to a rating of 10 percent, but no greater, for gastroesophageal reflux disease
The Veteran is service-connected for gastroesophageal reflux disease (GERD) at an initial noncompensable rating under Diagnostic Code 7346 from October 1, 2006.  On April 26, 2013, the Veteran filed a claim for an increased rating.  In April 2014, the RO denied the Veteran’s claim.  The Veteran is appealing that decision.  
Because the claim is a non-initial claim, the Board will consider evidence of symptomatology from one year prior to when the claim was filed.  38 C.F.R. § 3.400(o).  See A.B. v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claim remains in controversy where less than the maximum available benefit is awarded unless the Veteran expresses an intent to limit the appeal to a specific disability rating).  If an increase in severity of disease is ascertainable prior to a year before the filing date, the effective date shall be the date that the increase in severity is discernible.  See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010).  
Diagnostic Code 7346 provides ratings for hiatal hernia.  38 C.F.R. § 4.114.  A 60 percent rating is provided for hiatal hernia with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.  Id.  A 30 percent rating is provided for hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  Id.  A 10 percent rating is provided for hiatal hernia with two or more of the symptoms for the 30 percent rating of less severity.  Id.  
In every case where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.
Ratings under Diagnostic Codes 7301 to 7329, 7331, 7342, and 7345 to 7348 will not be combined with each other.  38 C.F.R. § 4.114.  A single rating will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevation.  38 C.F.R. § 4.114.
From April 26, 2013, to July 9, 2015, the evidence is consistent with a rating of 10 percent.  In a February 2014 VA GERD examination, the Veteran indicates heartburn, which is also the only GERD-specific symptom noted by the examiner.  The examiner further notes that the Veteran’s GERD does not impact his ability to work.  A February 2014 private imaging record (received 3/4/14, page 5 of 5) indicates “[i]ntermittent minimal gastric reflux” and states that the “examination is within normal limits.”  
In his May 2014 notice of disagreement, the Veteran indicates daily chest pain, daily arm pain, stomach pain, and regurgitation.  Also, the Veteran describes how his back disorder considerably impairs his health, but does not describe how his GERD-related symptoms considerably impair his health.  The Veteran is considered to be competent to testify regarding the symptoms described in his May 2014 notice of disagreement because they are within the knowledge and personal observations of lay witnesses.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  There is no reason to question his credibility.    
Taken together, there is evidence of heartburn (pyrosis), regurgitation, and arm pain.  This evidence supports a rating of 10 percent, based on the presence of two or more of the symptoms for the 30 percent evaluation of less severity.  
The weight of the evidence is against the existence of considerable impairment of health so as to support a rating of 30 percent.  The VA examination specifically states that the Veteran’s GERD does not impact his ability to work and the private imaging study indicates “[i]ntermittent minimal gastric reflux” only.  Consistent with this, the May 2014 notice of disagreement only specifically describes how the Veteran’s back disorder considerably impairs the Veteran’s health, but offers no comparative discussion regarding GERD.  The weight of this evidence is against the existence of considerable impairment of health due to GERD so as to support a rating of 30 percent.  Rather, the Veteran’s symptomatology is consistent with a 10 percent rating based on symptoms of less severity.  
There is no evidence of material weight loss and hematemesis or melena with moderate anemia so as to support a rating of 60 percent.
2. From July 10, 2015, entitlement to a rating of 30 percent, but no greater, for gastroesophageal reflux disease
From July 10, 2015, the evidence is consistent with a rating of 30 percent.  The Veteran’s July 2015 VA Form 9 indicates “constant epigastric distress after every meal,” consistently “waking up after two hours of sleep to regurgitate, and arm pain.”  The Veteran is competent to testify regarding these symptoms because they are within the knowledge and personal observations of lay witnesses.  Barr, 21 Vet. App. at 309.  There is no reason to question his credibility.  
The Veteran’s testimony regarding epigastric distress after every meal and “waking up after two hours of sleep” constitutes evidence of persistently recurrent epigastric distress and considerable impairment of health.  He also displays other symptoms consistent with a 30 percent rating, including heartburn (pyrosis), regurgitation, and arm pain.  While there is no specific evidence of dysphagia (problems swallowing), the evidence nevertheless supports a rating of 30 percent, in that the Veteran’s overall symptomatology clearly more closely approximates the criteria for a 30 percent rating than a 10 percent rating.  See 38 C.F.R. § 4.7.  
There is no evidence of material weight loss and hematemesis or melena with moderate anemia so as to support a rating of 60 percent.  
The evidence does not support additional staged ratings for any time period on appeal.  For no period would the Veteran be entitled to a higher rating under a different Diagnostic Code.
REASONS FOR REMAND
1. Entitlement to an initial rating in excess of 10 percent for lumbar strain is remanded.
The United States Court of Appeals for Veterans Claims has held that a VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, nonweight-bearing, and, if possible, with the range of the opposite undamaged joint.  Correia v. McDonald, 28 Vet. App. 158, 169–70 (2016).  The February 2014 VA examination does not contain such findings.  A new examination is required.

The matter is REMANDED for the following action:

After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and severity of the Veteran’s service-connected lumbar strain.  The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report.  
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 nonweight-bearing and, if possible, with range of the opposite undamaged joint.  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.  
The examiner should determine whether the Veteran’s lumbar strain is manifested by weakened movement, excess fatigability, incoordination, pain or flare-ups.  These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare-ups. 
The examiner should also request the Veteran identify the extent of his functional loss during a flare-ups and, if possible, offer range of motion estimates based on that information.  If the examiner is unable to provide an opinion on the impact of any flare-ups on the Veteran’s range of motion, the examiner should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. 
If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so, and must state

whether there is additional evidence that would permit the necessary opinion to be made.

 
Michael J. Skaltsounis
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	B. Cannon, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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