Citation Nr: 0705618	
Decision Date: 02/27/07    Archive Date: 03/05/07

DOCKET NO.  04-38 166A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, 
Virginia


THE ISSUE

Entitlement to a higher initial disability rating for 
service-connected gastroesophageal reflux disease (GERD) with 
hiatal hernia and Barrett's Esophagus.


ATTORNEY FOR THE BOARD

M. N. Hyland, Counsel


INTRODUCTION

The veteran had active duty from August 1983 to August 2003.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from an October 2003 rating decision by a 
Regional Office (RO) of the Department of Veterans Affairs 
(VA).  That decision granted service connection for 
gastroesophageal reflux disease and assigned a noncompensable 
rating effective from September 1, 2003.  The veteran 
appealed for a higher rating.  By way of an October 2004 
rating decision, the RO granted a higher rating to 10 
percent, effective September 1, 2003.  The veteran continued 
to appeal for a higher rating.  

In September 2006, the Board remanded the appeal to the RO.  
In November 2006, the RO granted a higher rating of 30 
percent, effective from June 22, 2005 for the condition.  The 
veteran has not indicated he is satisfied with this rating.  
Thus, the claim is still before the Board.  AB v. Brown, 6 
Vet.App. 35 (1993).


FINDING OF FACT

The veteran's service-connected disability, described for 
rating purposes as gastroesophageal reflux disease with 
hiatal hernia and Barrett's Esophagus is productive of 
stomach pain, difficulty swallowing, heartburn, epigastric 
pain, scapular pain, and reflux and regurgitation of stomach 
contents with no evidence of vomiting, material weight loss 
and hematemesis or melena with moderate anemia; or, other 
symptom combinations productive of severe impairment of 
health.  


CONCLUSION OF LAW

Effective from September 1, 2003, the criteria for a 
disability rating of 30 percent, but no higher, for 
gastroesophageal reflux with hiatal hernia and Barrett's 
esophagus have been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 
2002); 38 C.F.R. §§ 4.7, 4.71(a), Diagnostic Codes 7399-7346 
(2006).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act (VCAA)

The VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) 
(codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 
5107, and 5126 (West 2002 & Supp. 2005) redefined VA's duties 
to notify and assist the veteran in the development of a 
claim.  VA regulations implementing the VCAA were codified as 
amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) 
(2006).

The notice requirements of the VCAA require VA to notify the 
veteran of any evidence that is necessary to substantiate his 
claim, as well as the evidence VA will attempt to obtain and 
which evidence he is responsible for providing.  Quartuccio 
v. Principi, 16 Vet. App. 183 (2002).  The requirements apply 
to all five elements of a service connection claim:  veteran 
status, existence of a disability, a connection between the 
veteran's service and the disability, degree of disability, 
and effective date of the disability.  Dingess v. Nicholson, 
19 Vet. App. 473 (2006).  The notice must be provided to a 
claimant before the initial unfavorable decision on a claim 
for VA benefits by the agency of original jurisdiction (in 
this case, the RO).  Id; see also Pelegrini v. Principi, 18 
Vet. App. 112 (2004).  

In this case, in January 2005 and November 2006 letters, the 
RO provided notice to the veteran regarding what information 
and evidence is needed to substantiate increased ratings 
claims, as well as specifying what information and evidence 
must be submitted by him, what information and evidence will 
be obtained by VA, and the need for him to advise VA of or 
submit any further evidence that pertains to his claim.  He 
was, in essence, told to submit pertinent evidence he had in 
his possession.  The letters further addressed the 
information and evidence necessary to establish an effective 
date in the event that an increased rating is granted.

Additionally, the RO has taken appropriate action to comply 
with the duty to assist the veteran with the development of 
his claim.  The record includes service medical records, 
private medical records, VA treatment records, and a VA fee-
basis examination report.  As the veteran has been afforded a 
VA examination in relation to his claim, the Board finds that 
the record as it stands now includes sufficient medical 
evidence to decide the claim at hand and that the 
requirements of 38 C.F.R. § 3.159(c)(4) have been met.  

In sum, the record reflects that the facts pertinent to the 
claim have been properly developed and that no further 
development is required to comply with the provisions of the 
VCAA or the implementing regulations.  That is to say, 
"the record has been fully developed," and it is "difficult 
to discern what additional guidance VA could [provide] to the 
appellant regarding what further evidence he should submit to 
substantiate his claim."  Conway v. Principi, 353 F. 3d. 1369 
(Fed. Cir. 2004).  Accordingly, the Board will adjudicate the 
claim.

Analysis

Disability evaluations are determined by the application of a 
schedule of ratings which is based on the average impairment 
of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  
Separate diagnostic codes identify the various disabilities.  
Regulation requires that each disability be viewed in 
relation to its history and that there be emphasis upon the 
limitation of activity imposed by the disabling condition.  
Each disability must be considered from the point of view of 
the veteran working or seeking work.  When there is an 
approximate balance of positive and negative evidence 
regarding the merits of an issue material to the 
determination of the matter under consideration, the benefit 
of the doubt in resolving the issue shall be given to the 
claimant.  38 U.S.C.A. § 5107 (West 2002).  

Furthermore, 38 C.F.R. § 4.7 provides that, 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.  These requirements for evaluation of the 
complete medical history of the claimant's condition operate 
to protect claimants against adverse decisions based on a 
single, incomplete or inaccurate report and to enable VA to 
make a more precise evaluation of the level of the disability 
and of any changes in the condition.  Schafrath v. Derwinski, 
1 Vet. App. 589 (1991).  

Where entitlement to compensation has already been 
established and an increase in the disability rating is at 
issue, it is the present level of disability that is of 
primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 
(1994).  However, when the veteran initiated his appeal of 
the issues on appeal, he was appealing the original 
assignment of disability evaluation following the award of 
service connection.  38 U.S.C.A. § 5107(a); Shipwash v. 
Brown, 8 Vet. App. 218, 224 (1995).  The severity of this 
disability is to be considered during the entire period from 
the initial assignment of a disability rating to the present 
time.  See Fenderson v. West, 12 Vet. App. 119(1999).

The Board notes that the veteran's gastrointestinal 
disability was initially assigned a noncompensable rating and 
then a 10 percent disability rating from the date of the 
veteran's claim on September 1, 2003.  By way of a rating 
decision dated in November 2006, the RO assigned a 30 percent 
disability rating from June 22, 2005.  The veteran's service-
connected GERD with hiatal hernia and Barrett's Esophagus are 
currently rated under Diagnostic Code 7346.  There is no 
Diagnostic Code directly applicable to this diagnosis.  When 
an unlisted condition is encountered, it is permissible to 
rate under a closely related disease or injury.  38 C.F.R. 
§ 4.20.  In the present case, the most appropriate code to 
use to rate the disability by analogy is Diagnostic Code 
7346, which covers hiatal hernia.  Specifically, it dictates 
that persistently recurrent epigastric distress with 
dysphagia, pyrosis, and regurgitation, accompanied by 
substernal, or arm or shoulder pain, productive of 
considerable impairment of health warrants a 30 percent 
disability rating.  A 60 percent disability rating is 
warranted when 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, Diagnostic Code 
7346.

The pertinent medical evidence of record includes a July 2003 
VA examination report which shows that the veteran complained 
of recurrent heartburn since 1990. The examiner noted that 
although the veteran had no formal gastrointestinal work-up, 
he had a presumptive diagnosis of GERD and was on 
medications.

An August 2004 esophagogastroduodenoscopy (EGD) shows that 
the veteran had a hiatal hernia, but the stomach, pylorus, 
and duodenum appeared normal.  The impression was hiatal 
hernia.  2004 treatment records showed complaints of 
abdominal bloating, cramping, diarrhea and regurgitation.  It 
was unclear if these symptoms were related to the veteran's 
GERD or to another gastrointestinal disorder, such as 
irritable bowel syndrome.

A June 2005 VA fee-basis examination report noted that the 
veteran has been suffering from Barrett's Epithelium disorder 
for 10 years and that the condition resulted in pain from 
reflux, stomach pain and difficulty sleeping with no affect 
on body weight.  The veteran provided a history of difficulty 
swallowing for three years.  The examiner noted that there 
was no functional impairment resulting from the condition and 
that it did not result in the veteran losing any time from 
work.

The examiner went on to note that the veteran has been 
suffering from GERD for 10 years and that it did not affect 
his body weight, but resulted in dysphagia, heartburn, 
epigastric pain, scapular pain and reflux and regurgitation 
of stomach contents.  The examiner noted that there was no 
functional impairment or time lost from work as a result of 
the veteran's GERD.  

The Board notes that the July 2003 VA examination report 
shows a diagnosis of GERD, but no formal clinical testing was 
conducted.  In 2004 and 2005, upon further clinical testing, 
it was determined that the veteran had GERD, a hiatal hernia, 
and Barrett's Epithelium disorder.  The June 2005 VA fee-
basis examination report showed that the examiner determined 
that the veteran had been suffering from GERD and Barrett's 
Epithelium disorder for 10 years.  The veteran's subjective 
complaints during the entire appeals period have consisted of 
stomach pain, difficulty swallowing, heartburn, epigastric 
pain, scapular pain, and reflux and regurgitation of stomach 
contents.  

In light of the veteran's consistent gastrointestinal 
complaints from 2003 to present and in light of the June 2005 
examiner's assessment that the veteran has been suffering 
from the aforementioned disorders for 10 years, the Board 
finds that a 30 percent disability rating is warranted for 
the entire appeal period.  Nevertheless, the Board finds that 
a rating in excess of 30 percent is not warranted at any time 
during the appeals process as the evidence of record does not 
show vomiting, material weight loss and hematemesis or melena 
with moderate anemia; or, other symptom combinations 
productive of severe impairment of health.  In fact, the June 
2005 VA fee-basis examination report shows that the veteran's 
conditions did not affect his weight and resulted in no 
functional impairment or loss of time from work.

In making these determinations, the Board has considered the 
provisions of 38 U.S.C.A. § 5107(b), but there is not such a 
state of approximate balance of the positive evidence with 
the negative evidence to otherwise warrant a favorable 
decision.

ORDER

A 30 percent disability rating is warranted from September 1, 
2003 to June 21, 2005 for gastroesophageal disease with 
hiatal hernia and Barrett's Esophagus.  To this extent, the 
appeal is granted.  A disability rating in excess of 30 
percent for gastroesophageal disease with hiatal hernia and 
Barrett's Esophagus is not warranted at any time during the 
appeal period.  To this extent, the appeal is denied.



____________________________________________
K. OSBORNE
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs