Citation Nr: 18124067
Decision Date: 08/07/18	Archive Date: 08/03/18

DOCKET NO. 10-36 475A
DATE:	August 7, 2018
ORDER
Entitlement to an increased rating in excess of 10 percent prior to October 9, 2013 for gastroesophageal reflux disease (GERD) is denied.
FINDINGS OF FACT
1. Prior to October 9, 2013, the Veteran’s service connected GERD was as likely as not manifested by at least mild symptomatology closely analogous to duodenal ulcer symptoms.  It is not shown that moderate symptoms with recurring episodes of severe symptoms two or three times a year, averaging 10 days in duration; nor were continuous moderate manifestations shown.
2. Persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain productive of considerable impairment of health have not been shown.
CONCLUSION OF LAW
The criteria for an initial increased rating in excess of 10 percent prior to October 9, 2013 for gastroesophageal reflux disease (GERD) have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.114, Diagnostic Codes 7305, 7399-7346 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran had active military service from December 1979 to December 1984.
By decision of April 2017, the Board granted an initial 10 percent rating for GERD prior to October 9, 2013.  That issue was appealed to the United State Court of Appeals for Veterans Claims (Court).  By Joint Motion, the matter was remanded to the Board for further consideration.  The Court did not disturb the grant of the 10 percent rating, and the issue as currently listed is back before the Board.
Increased Rating
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4 (2017).  Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder.  38 U.S.C. § 1155 (2012).  The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder.  38 U.S.C. § 4.1, 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  38 C.F.R. § 4.7 (2017).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
Evidence to be considered in an appeal from an initial disability rating is not limited to current severity, but will include the entire period of the disorder.  Additionally, it is possible for a Veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts.  See Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  
Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7 (2017). 
For conditions that are not specifically listed in the Schedule, VA regulations provide that those conditions may be rated by analogy under the DC for “a closely related disease or injury.” 38 C.F.R. § 4.20 (2017); see 38 C.F.R. § 4.27 (“When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, . . . .”  Where, however, a condition is listed in the schedule, rating by analogy is not appropriate.  In other words, “[a]n analogous rating . . . may be assigned only where the service-connected condition is unlisted.’” Suttman v. Brown, 5 Vet. App. 127, 134 (1993).
GERD may be rated under Diagnostic Code 7346 for hiatal hernia.  A ten percent evaluation contemplates two or more of the symptoms for the 30 percent evaluation of less severity. An evaluation of 30 percent is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 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, Code 7346 (2017).
GERD may also be rated under Diagnostic Code 7805 for symptoms associated with duodenal ulcer.  A 10 percent rating is warranted for mild symptoms, recurring one or twice yearly.  A 20 percent rating is warranted for moderate symptoms, with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations.  A 40 percent rating when moderately severe; less than severe but with impairment of health manifested by anemia and weight loss; or recurrent in capacitation episodes averaging 10 days or more in duration at least four or more times a year.  Code 7305.
Entitlement to an increased rating in excess of 10 percent prior to October 9, 2013 for gastroesophageal reflux disease (GERD).
The Veteran asserts that a rating in excess of 10 percent prior to October 9, 2013 is warranted for her GERD. The Board disagrees.
Review of VA treatment records document the Veteran’s ongoing medication for GERD, as specifically noted in December 2000, June 2003, and July 2003.  In March 2001 she reported epigastric discomfort.  The Veteran was also advised in June 2003 and July 2003 to eat more frequent meals, smaller portions, and elevate the head of her bed.
In an April 2008 buddy statement, S.G. reported the Veteran lived with his family during a time when she was very ill.  He often helped the Veteran, particularly with lifting, because she had severe stomach pains.  He also reportedly observed the Veteran vomit for several minutes at a time and stay in bed for days because of stomach pains.
In a May 2008 statement, the Veteran reported she still has stomach pain which causes her to “miss work sometimes to the tune of a reprimand which puts [her] job in jeopardy [and] she was on Family Medical Leave for [her] stomach which ended in April of 2008.”
In an August 2008 private statement, Dr. H.C. characterized the Veteran’s episodic epigastric pain as dyspeptic symptoms.
In a January 2009 private statement, Dr R.A. noted the Veteran’s intermittent epigastric pain lasting hours and chronic cholecystitis with cholelithiasis.
At the December 2009 VA examination for stomach, duodenum and peritoneal adhesions, the examiner noted the Veteran’s current treatments for GERD include restricted diet, antacids, and proton pump inhibitors.  Review of her medical history revealed nausea on a weekly basis and belching, but no incapacitation due to stomach or duodenal disease, abdominal colic, vomiting, abdominal distention, gnawing or burning pain, or episodes of hematemesis or melena, vomiting, diarrhea.  Upon clinical evaluation, the Veteran demonstrated abdominal tenderness and mild epigastric tenderness and no significant weight loss, malnutrition, or anemia. 
At the March 2013 Board hearing, the Veteran reported being on a restricted diet, advised to lose weight, was told she was anemic then put on medication to increase her iron levels, and experiences reflux.
After a review of the pertinent evidence of record during the appeal period, as discussed above, the Board finds that prior to October 9, 2013, the Veteran’s service-connected GERD was as likely as not manifested by at least mild symptomatology closely analogous for duodenal ulcer.  Thus, under Code 7305, a 10 percent rating can be assigned under that Code.  A rating in excess of 10 percent under the applicable codes is not warranted however as the evidence does not show epigastric distress with dysphagia, pyrosis, and regurgitation, substernal or shoulder pain, and/or productive of considerable impairment of health; nor pain, vomiting, material weight loss and hematemesis or melena with moderate anemia or other symptom combinations productive of severe impairment of health.
Moreover, moderate ulcer like symptoms have not been shown during this period.  There were no reports of severe symptoms and medication kept the complaints under reasonable control.  Continuous moderate manifestations were not clinically demonstrated during this time and there were no signs of weight loss, anemia or impairment of health at this time warranting a higher rating.
As a result, a 10 percent rating, but no higher is warranted for GERD prior to October 9, 2013.
 
The Board has considered the doctrine of reasonable doubt but concludes that the evidence preponderates against a claim for rating in excess of 10 percent for GERD prior to October 9, 2013.
 
MICHAEL D. LYON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Elliot Harris, 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

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