Entitlement to an earlier effective date prior to December 15, 2016, for the assignment of a 10 percent rating for gastroesophageal reflux disease (GERD) is denied.

Citation Nr: 26001411 Decision Date: 01/30/26 Archive Date: 01/30/26 DOCKET NO. 20-24 610 DATE: January 30, 2026 ORDER Entitlement to an earlier effective date prior to December 15, 2016, for the assignment of a 10 percent rating for gastroesophageal reflux disease (GERD) is denied. Entitlement to a rating in excess of 10 percent for GERD, to include hiatal hernia, is denied. FINDINGS OF FACT 1. In a January 2013 rating decision, the Veteran was granted service connection for GERD, rated as noncompensable, effective November 30, 2012. Subsequently, as Statement of the Case (SOC) was issued in March 2014, continuing the noncompensable rating. This decision became final, as he did not appeal the SOC within 60 days. Subsequently, in May 2017, he filed an increased rating claim for his GERD symptoms. In March 2024, the Board determined that his symptoms were factually ascertainable from December 15, 2016, based on symptoms reported during a private examination. However, these symptoms are not factually ascertainable prior to that date. 2. The Veteran's GERD, to include hiatal hernia, has been characterized by symptoms of dysphagia, pyrosis, reflux, regurgitation, substernal arm or shoulder pain, sleep disturbance, and epigastric tenderness on a regular basis. However, the evidence does not show these symptoms resulted in considerable impairment of health. CONCLUSIONS OF LAW 1. The criteria for entitlement to an earlier effective date for an increased rating for GERD have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.1-4.7, Diagnostic Code (DC) 7399-7346. 2. The criteria for a rating in excess of 10 percent for GERD, to include hiatal hernia, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 7399-7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Marine Corps, on active duty from September 2004 to November 2012. His awards include the Global War on Terrorism Service Medal, among others. This claim comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2022, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. This claim was last before the Board in July 2025 when, pursuant to a joint motion for remand, it remanded the claim for further development. The Board is now satisfied there was substantial compliance with this remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the RO contacted the Veteran in March 2025, asking him to complete a VA Form 21-4142 or provide additional records from his private clinician dated prior to January 2017, and invited him to identify any additional records. Unfortunately, the Veteran never responded to this request, and the Board is left to consider the appeal on the available evidence of record. Moreover, additional VA treatment records were added to the claims file, and the RO included a July 2025 statement in the record reflecting that all available VA treatment records were obtained. Thereafter, the RO issued a Supplemental Statement of the Case (SSOC) in October 2025. Accordingly, even though the necessary evidence was not obtained, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Earlier Effective Date Effective dates for claims seeking an increased rating for already-service connected disabilities that are based on an original claim, or a claim for an increased will be the date of receipt of the claim or the date the entitlement arose, whichever is later. 38 C.F.R. § 3.400. However, the effective date may also be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from the date of the increase, based on a review of the entire evidence of record. 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997); Swanson v. West, 12 Vet. App. 442 (1999). 1. Entitlement to an earlier effective date for the assignment of a 10 percent rating for GERD, prior to December 15, 2016. The Veteran seeks an earlier effective date for the 10 percent rating assigned for his GERD. After a review of the record, the Board finds that an earlier effective date is not warranted. In determining whether an effective date assigned for an increased rating is correct or proper, the law requires (1) a determination of the date of the receipt of the claim for the increased rating, and (2) a review of all the evidence of record to determine when an increase in the claimed disability was factually "ascertainable." See Hazan, 10 Vet. App. At 521. Here, the Board finds the date of receipt of the Veteran's increased rating claim was received on May 18, 2017. Indeed, he was first granted service connection for his GERD in a January 2013 rating decision, rated as noncompensable from November 30, 2012. While he filed a notice of disagreement, this was denied in the March 2014 SOC. Unfortunately, he did not appeal this issue to the Board within 60 days, and the SOC decision became final. Subsequently, in May 2017, the Veteran submitted the increased rating claim resulting in this appeal. Thus, the Board finds the date of claim to be May 18, 2017. Therefore, the question before the Board is whether it is factually ascertainable that the Veteran's 10 percent rating is warranted prior to December 15, 2016, at any point from May 4, 2016. The Board finds that it is not. Specifically, the Board previously relied on the Veteran's submission of a private medical examination dated December 15, 2016, as the basis for the grant of an earlier effective date. However, the only documents of record added between May and December 2016, are notification letters regarding the Veteran's entitlement to education benefits. The Board has also reviewed medical treatment records during this period. Unfortunately, no VA or private treatment records discuss or contemplate the Veteran's GERD symptoms to the point the Board finds it factually ascertainable that he meets the criteria for a 10 percent rating during this period. For example, a July 2016 VA treatment note acknowledges his diagnosis of GERD, however, it does not include any reported symptoms. Given the above, the Board finds that it is not factually ascertainable the Veteran's GERD symptoms, warranting a 10 percent rating, existed prior to December 15, 2016. As such, an earlier effective date is denied. The Board notes that in previous argument, the Veteran indicated that his 10 percent rating should date back to November 2012, the date he initially filed a claim for service connection. As noted above, the effective date must be either the date of the increased rating claim, or the date the entitlement arose, whichever is later. 38 C.F.R. § 3.400. Here, the Veteran did not appeal the March 2014 SOC decision that denied a compensable rating for his GERD within the 60 days. Thus, that decision became final. If the Veteran seeks reconsideration of that decision based on clear and unmistakable error, that is a separate claim which must be pled with specificity (the claim must state either "clear and unmistakable error" or "CUE" in the claim itself). If the Veteran were to file a CUE claim with regard to that decision, the RO must adjudicate that CUE matter in a formal rating decision which, if denied, is appealable to the Board. 38 C.F.R. § 20.1403. Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. See generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has 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). Further, "[w]here 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 required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7. The terms "mild," "moderate" and "severe" are not defined. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology such as "mild" or "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. 2. Entitlement to a rating in excess of 10 percent for GERD. The Veteran contends that he is entitled to a rating in excess of 10 percent for his service connected GERD condition. The Board finds that the claim should be denied. As noted above, the Veteran is currently in receipt of a 10 percent rating for his GERD, effective December 15, 2016, under DC 7399-7346. Hyphenated Diagnostic Codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. In this matter, GERD is not specifically addressed by the diagnostic code. However, DC 7399 refers to a disability of the digestive system, and DC 7346 rates by analogy to symptoms associated with a hiatal hernia. Based on the symptoms reported in the record, this is the most appropriate rating criteria allowable under the diagnostic criteria. Under the applicable rating criteria: " A 10 percent rating is assigned for two or more symptoms of the 30 percent evaluation of less severity; " A 30 percent rating is assigned 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 rating is assigned for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptoms productive of severe impairment of health. 38 C.F.R. § 4.114, DC 7346. The criteria under DC 7346 are conjunctive, not disjunctive, thus all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991) (use of the conjunctive "and" in a statutory provision meant that all the conditions listed in the provision must be met). While the term "considerable impairment of health" is not defined in the rating criteria, considerable is generally described as "large in extent or degree." MERRIAM-WEBSTER's COLLEGIATE DICTIONARY 787 (11th ed. 2003). Thus, the Board will review the evidence to determine whether the Veteran's GERD symptoms resulted in a large degree of health impairment. In assigning a rating under Diagnostic Code 7346, the Board may not consider the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). During the course of this appeal, revisions to the Schedule for Rating Disabilities created a new diagnostic code, Diagnostic Code 7206, specifically for GERD. 89 Fed. Reg. 19,735 (Mar. 20, 2024). In sum, the old and new regulations are both for consideration with regard to rating the Veteran's disability, and the more favorable regulation will be applied, with the exception that if the revised criteria are more favorable to the Veteran and provide for an increased rating, that award may not be made effective before the effective date of the regulatory change. See 38 U.S.C. § 5110 (g); VAOPGCPREC 3-00; Landgraf v. USI Film Products, 511 U.S. 244 (1994); Karnas v. Derwinski, 1 Vet. App. 308 (1991); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the amended criteria of DC 7206: " a noncompensable rating is warranted for a documented history of GERD without daily symptoms or requirement for daily medications; " a 10 percent rating is warranted for documented history of esophageal stricture(s) that requires daily medications to control dysphagia, otherwise asymptomatic; " a 30 percent rating is warranted for documented history of recurrent esophageal stricture(s) causing dysphagia which requires dilation no more than 2 times per year. 38 C.F.R. § 4.114, DC 7206. Therefore, the question before the Board is whether the Veteran's GERD symptoms result in either (1) persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, and/or from May 19, 2024, (2) persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Either of these findings would result in a higher rating. Analysis Turning to the evidence, the Veteran underwent a VA examination in August 2017. Here, he was diagnosed with GERD and hiatal hernia. He reported continuous use of over-the-counter medication, such as TUMs, and zantac. As for symptoms, the VA examiner noted reflux, regurgitation, substernal arm pain, and sleep disturbances caused by esophageal reflux. The clinician opined that these symptoms occurred 4 or more times per year, lasting on average between 1 and 9 days. Overall, the VA examiner opined that his symptoms caused some functional impairment. Specifically, his frequent epigastric distress interfered with sleep, and he must monitor food intake to prevent severe symptoms. In addition to the VA examination during this period, the Veteran submitted a private medical examination dated December 2016. Here, he reported symptoms consistent with the later VA examination. Specifically, the private clinician noted symptoms of recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal arm pain, and sleep disturbances. According to the clinician, these symptoms all occurred 4 or more times per year. However, each symptom lasted less than one day in duration. Next, the Veteran underwent a VA examination in August 2025. Here, he reported daily heartburn, sleeping with his head raised, intermittent regurgitation, however he was not taking any treatment. The examiner noted his treatment plan does not require taking daily prescribed medication. Further, the clinician noted symptoms of dysphagia, reflux, regurgitation, and epigastric pain. However, the examiner opined that his symptoms caused no functional impairment. In addition to the medical evidence, the Veteran testified before the undersigned VLJ in May 2022. Here, he testified that he suffers from acid reflux, abdominal pain, pain on left arm but primarily in the chest, heartburn, regurgitation, and trouble swallowing multiple times per week. Further, he testified that he sleeps at a slightly elevated position, but it did not cause a significant lack of sleep due solely to his GERD symptoms. Overall, the evidence of record does not indicate that the Veteran's GERD symptoms were of such frequency and severity to warrant a 30 percent rating. Specifically, the Board determines that his symptoms were not productive of considerable impairment of health. In other words, his GERD symptoms did not impair his health to a large extent and/or degree. Moreover, from May 19, 2024, his symptoms did not result in documented history of recurrent esophageal stricture causing dysphagia which requires dilatation no more than two times per year. While the Board acknowledges some impairment, the evidence taken as a whole, does not show considerable health impairment. Indeed, he did not report any nutrient deficiency or weight loss, despite having to monitor his food intake at times. While there was some impact to his sleep hygiene, his testimony indicates, in the Board's view, that it was not to the frequency and severity that would show it to a large degree. Moreover, his VA treatment records do not contain any significant complaints related to GERD, and there are no reported surgeries or hospitalizations regarding this disorder. As such, the Board finds the evidence is persuasively against finding that his GERD symptoms were productive of considerable impairment of health. In considering the appropriate disability ratings, the Board has also considered the Veteran's statements that his GERD is worse than the rating he currently receives. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). On the other hand, such competent evidence concerning the nature and extent of the Veteran's GERD has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings, as provided in the examination report, directly address the criteria under which his disability is evaluated. In sum, the Board finds that the Veteran has two or more symptoms of GERD which do not result in considerable or severe impairment of health, and to date are of less severity than those anticipated by the 30 percent rating. As such, the Board finds that a rating in excess of 10 percent for GERD is not supported at any point during the period on appeal. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board McDonald, Thomas K.