Decision A26039885

Citation Nr: A26039885
Decision Date: 04/29/26	Archive Date: 04/29/26

DOCKET NO. 210609-164903
DATE: April 29, 2026

ORDER

Entitlement to service connection for bilateral hearing loss is granted.

Entitlement to a 30 percent rating for gastroesophageal reflux disease (GERD) with a history of peptic ulcer disease, beginning August 23, 2018, is granted, subject to the law and regulations governing the payment of monetary benefits.

REMANDED

Entitlement to a disability rating in excess of 30 percent for GERD is remanded.

Entitlement to service connection for eosinophilic esophagitis, to include as secondary to service-connected GERD, is remanded.

FINDINGS OF FACT

1. Resolving all doubt in the Veteran's favor, his current bilateral hearing loss is related to his active military service.

2. Resolving all doubt in the Veteran's favor, beginning August 23, 2018, the Veteran's GERD was characterized by symptoms productive of considerable impairment of his health.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for bilateral hearing loss have been met.  38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

2. Beginning August 23, 2018, the criteria for a rating of 30 percent for GERD have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Codes (DCs) 7399-7346 (in effect prior to May 19, 2024).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from June 1976 to June 1979, from December 1979 to June 1988, and from February 1989 to October 1997.

In March 2021, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a February 2021  rating decision by the agency of original jurisdiction (AOJ) which denied entitlement to service connection for hearing loss and an increased rating for service-connected GERD. 

In June 2021, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the February 2021 rating decision and continued the denials.

In the June 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. 

In January 2025, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ).  A transcript is of record.

Under the Board hearing docket, the Board may only consider the evidence of record at the time of the February 2021 AOJ decision, which was subsequently subject to higher-level review, and any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing.  38 C.F.R. § 20.302(a).  If evidence was submitted either (1) during the period after the AOJ issued the decision, which was subsequently subject to higher-level review and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision.  38 C.F.R. §§ 20.300, 20.302(a), 20.801.

Additionally, as the evidence of record suggests that the Veteran may have eosinophilic esophagitis associated with his service-connected GERD, the issue of entitlement to service connection for eosinophilic esophagitis has been added to this appeal and is addressed in the remand section below.  38 C.F.R. § 3.155(d)(2); Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021).

Lastly, the Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, and the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 
.  38 C.F.R. § 3.155(d)(2); Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021).

Lastly, the Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, and the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016).

Service Connection

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306.  Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

For chronic disorders, including sensorineural hearing loss, service connection may be granted on a presumptive basis if there is evidence of: (1) an in-service diagnosis of a chronic condition; (2) manifestations within the applicable period (usually a year); or (3) a showing of continuity of symptomatology.  38 C.F.R. § 3.309(a).  Even where service connection may not be presumed, service connection may still be established on a direct basis. 

Further, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran.  Lynch v. McDonough, 21 F.4th 776, 781-82 (2021).

1. Entitlement to service connection for bilateral hearing loss

The Veteran contends that his bilateral hearing loss is due to exposure to hazardous noise during his U.S. Navy service.  At the January 2025 Board hearing, the Veteran explained that he was exposed to excessive noise as a propulsion engineer and also when he was working on the flight deck.  He described experiencing loud noise aboard ship during dry dock, including from jackhammers and needle guns.  The Veteran stated that there was a constant hum of noise on the ship at all times.  The Veteran also explained that while he used the hearing protection provided, it was of poor quality and "did not work well."  The Veteran further testified that his hearing loss began while in service and got progressively worse over time.  He added that since discharge, he has not encountered hazardous noise levels that approach the intensity of what he experienced during his military service.  See January 2025 Board Hearing Tr. at 11-13. 

The Board notes that the AOJ has made favorable several findings including that the Veteran has a diagnosis of bilateral hearing loss and that VA has conceded in-service hazardous noise exposure.  The Board accepts these favorable findings.  38 C.F.R. § 3.104 (c).  As such, the first and second elements for establishing service connection are met. 

The remaining question is whether the Veteran's current bilateral hearing loss is related to service. 

The Veteran was most recently afforded a VA hearing loss examination in November 2020.  The examiner noted that the Veteran's in-service hazardous noise exposure included noise from the "flight deck" and from working as a boiler technician in the main engine room.  The examiner noted no post-service occupational and recreational hazardous noise exposure.  Nevertheless, the examiner provided a negative nexus to service.  As rationale, the examiner stated that the Veteran did not complain of hearing loss during service and there was no significant permanent shift
38 C.F.R. § 3.104 (c).  As such, the first and second elements for establishing service connection are met. 

The remaining question is whether the Veteran's current bilateral hearing loss is related to service. 

The Veteran was most recently afforded a VA hearing loss examination in November 2020.  The examiner noted that the Veteran's in-service hazardous noise exposure included noise from the "flight deck" and from working as a boiler technician in the main engine room.  The examiner noted no post-service occupational and recreational hazardous noise exposure.  Nevertheless, the examiner provided a negative nexus to service.  As rationale, the examiner stated that the Veteran did not complain of hearing loss during service and there was no significant permanent shift in his hearing thresholds beyond test variability from entrance to separation.

The Board finds the opinion insufficient for adjudicative purposes as it improperly relies on the absence of in-service evidence of hearing loss to conclude there is no nexus between the Veteran's hearing loss and military service, which is contrary to established case law.  See Hensley v. Brown, 5 Vet. App. 155 (1993) (holding that service connection for a current hearing disability was not precluded where hearing was found to be within normal limits on the audiometric testing at separation from service).  When hearing loss is not shown in service, acoustic trauma or military noise exposure may constitute injury of the ear.  Even if disabling loss is not demonstrated at the time of separation, evidence of a current hearing loss disability under 38 C.F.R. § 3.385 and a medically sound basis sufficient to attribute that disability to service (as opposed to after-service causes) may serve as a basis for a grant of service connection for hearing loss.  Id. 

While the Board could remand the claim for another medical opinion, there is sufficient evidence to decide the claim, and a remand could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible.  38 C.F.R. § 3.304 (c).  In this case, the Veteran has consistently and credibly maintained that he has experienced hearing loss symptoms during and since active service, including diminished hearing.  The Veteran, as a layperson, is competent to be able to report on matters observed or within his personal knowledge, such as diminished hearing or ringing in the ears.  Layno v. Brown, 6 Vet. App. 465 (1994).  The Board finds the Veteran's lay statements competent, credible, and consistent with the circumstances of his service and assigns them high probative value.  38 U.S.C. § 1154 (b). 

As sensorineural hearing loss is considered a chronic condition of the nervous system that the Veteran states began in service, these credible statements of a continuity of symptoms since service, can substitute for medical nexus evidence.  38 C.F.R. §§ 3.303 (b), 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Jandreau, 492 F.3d at 1372, 1377.  

For all of the foregoing reasons, the Board finds that the evidence is at least evenly balanced as to whether the Veteran's hearing loss had onset in service following acoustic trauma.  Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that the nexus element is met and entitlement to service connection for hearing loss is warranted.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch, 21 F.4th at 776.

Increased Ratings

Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4.  The percentages contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  

Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  If two evaluations are potentially applicable, the higher evaluation 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.

GERD - Rating Criteria

The Veteran's GERD has been rated under DC 7399-7346.  

Prior to May 19, 2024, including during the period on appeal, GERD was not specifically listed in the Schedule for Rating Disabilities and
; 38 C.F.R. § 4.1.  

Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  If two evaluations are potentially applicable, the higher evaluation 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.

GERD - Rating Criteria

The Veteran's GERD has been rated under DC 7399-7346.  

Prior to May 19, 2024, including during the period on appeal, GERD was not specifically listed in the Schedule for Rating Disabilities and was rated by analogy to hiatal hernia under 38 C.F.R. § 4.114, DC 7346.

Under DC 7346, a 10 percent rating is warranted where there are two or more of the symptoms listed in the criteria for the 30 percent rating of less severity.  A 30 percent rating is warranted where there is persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of the Veteran's 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 symptoms combinations that are productive of severe impairment of health.

The terms "severe impairment of health" and "considerable impairment of health" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6.  However, the Board shall apply the ordinary meanings of the words.  "Considerable" is defined as "large in extent or degree."  Merriam-Webster's Collegiate Dictionary 267 (11th ed. 2012).  "Severe" is defined as "very painful or harmful."  Id. at 1140.  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.  Melena is defined as the passage of dark-colored feces stained with blood pigments or with altered blood.  Id. at 1142.

2. Entitlement to a rating in excess of 10 percent for GERD from August 23, 2018

Historically, a February 1999 rating decision granted service connection for GERD and assigned a 10 percent rating effective November 1, 1997 (the day following the Veteran's separation from service).  

Following that decision, the Veteran sought a higher rating on several occasions.  Rating decisions in August 2000, February 2001, February 2013, and November 2015 denied the claim and continued the 10 percent rating.  

Following the final decision in November 2015, the next communication from the Veteran to re-open the previously denied claim was on August 23, 2019, when the  Veteran submitted a formal claim (VA form 21-526EZ) in connection with GERD.  The Veteran attended a VA GERD examination in November 2019 and a rating decision later that month continued the 10 percent rating.

Within a year of that decision, in July 2020, the Veteran submitted a supplemental claim (VA Form 20-0995) and requested readjudication of entitlement to an increased rating for GERD.  A September 2020 rating decision denied the claim.

In October 2020, the Veteran submitted another supplemental claim and requested readjudication of entitlement to an increased rating for GERD.  The Veteran attended a VA GERD examination in February 2021 and a rating decision later that month denied the claim.

In March 2021, the Veteran submitted a request for HLR (VA Form 20-0996).  A June 2021 HLR decision continued the 10 percent rating.  The Veteran expressed timely disagreement with the decision, and the present appeal ensued. 

The Board notes that the Veteran has successfully preserved his August 23, 2019, date of claim by continuous pursuit, as he timely filed in succession one of the available review options within one year of a decision on the issue.  See 38 C.F.R. § 2.500(c)(1).  

Further, as this is a non-initial increased rating claim, the period on appeal before the Board
 a rating decision later that month denied the claim.

In March 2021, the Veteran submitted a request for HLR (VA Form 20-0996).  A June 2021 HLR decision continued the 10 percent rating.  The Veteran expressed timely disagreement with the decision, and the present appeal ensued. 

The Board notes that the Veteran has successfully preserved his August 23, 2019, date of claim by continuous pursuit, as he timely filed in succession one of the available review options within one year of a decision on the issue.  See 38 C.F.R. § 2.500(c)(1).  

Further, as this is a non-initial increased rating claim, the period on appeal before the Board begins on August 23, 2018, the date VA received the Veteran's increased rating claim, plus the one-year "look-back" period.  Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010).  The period on appeal ends in June 2021; the date of the rating decision on appeal.

Turning toward the medical and lay evidence of record, VA treatment records indicate that the Veteran was under the care of a non-VA physician for management of GERD.  The available private medical records indicate that the Veteran underwent an esophagogastroduodenoscopy and colonoscopy in May 2019.  The gastrointestinal pathology report notes the results of distal and proximal esophagus biopsies showing moderate basal cell hyperplasia and increased intraepithelial eosinophils.  The report also noted degranulating eosinophils and eosinophilic microabscesses in addition to the increased eosinophils in the esophagus.  The clinician concluded that the overall features were suggestive of eosinophilic esophagitis.  See September 2020 Medical Treatment Record - Non-Government Facility, gastrointestinal surgical pathology report of May 16, 2019.

The Veteran attended a VA GERD examination in November 2019.  The Veteran reported symptoms of dysphagia, pyrosis, reflux, regurgitation, substernal pain, and sleep disturbance caused by esophageal reflux with a frequency of symptom recurrence of four or more times per year.  The report noted that the Veteran requires daily medications for control.  The VA examiner noted a diagnosis of GERD with history of peptic ulcer disease.  The report was negative for esophageal stricture and spasm of esophagus.  The examiner noted no impact on the ability to work.  

The Veteran attended another VA GERD examination in February 2021.  At that time, the VA examiner noted symptoms of persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal pain, and sleep disturbance caused by esophageal reflux with a frequency of symptom recurrence of four or more times per year.  The Veteran continues to require daily medications for control.  The examiner confirmed a diagnosis of GERD.  The examination report was negative for "nausea, vomiting, material weight loss, hematemesis, and melena with moderate anemia."  The examiner noted that the Veteran did not have esophageal stricture, spasm of esophagus, or an acquired diverticulum of the esophagus.  The examiner noted that the Veteran's GERD impacted his ability to work as the Veteran was unable to bend over to the ground, stoop, or crawl due to recurrent reflux.

In March 2021, the Veteran submitted a statement in support of his claim describing his GERD symptoms of recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal, arm, and/or shoulder pain.  He also stated that his GERD medication causes him severe generalized body pain, particularly in his abdomen and chest.

In January 2025, the Veteran testified at the Board hearing that he suffers from GERD symptoms on a daily basis, including chest, neck, and shoulder pain,  difficulty sleeping, difficulty in cold weather, and changes in diet.  He further testified that he has trouble swallowing, has to be careful in what he eats, and that there are certain foods he is no longer permitted to eat.  See January 2025 Board Tr. at 3-4.  

Based on a wholistic view of the record, the Board finds that the Veteran's disability picture more nearly approximates the criteria of a 30 percent evaluation for the period on appeal.  The medical and lay evidence of record reflect that the Veteran suffered from an array of chronic symptoms during the entire period on appeal, including persistently recurrent frequent symptoms of epigastric distress, dysphagia, pyrosis, reflux,
  difficulty sleeping, difficulty in cold weather, and changes in diet.  He further testified that he has trouble swallowing, has to be careful in what he eats, and that there are certain foods he is no longer permitted to eat.  See January 2025 Board Tr. at 3-4.  

Based on a wholistic view of the record, the Board finds that the Veteran's disability picture more nearly approximates the criteria of a 30 percent evaluation for the period on appeal.  The medical and lay evidence of record reflect that the Veteran suffered from an array of chronic symptoms during the entire period on appeal, including persistently recurrent frequent symptoms of epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal pain, arm pain, shoulder pain, and sleep disturbance.  The Veteran's GERD symptoms also impacted his ability to work, making it difficult for him to bend, stoop, or crawl.  Given the above, the Board finds that the Veteran's GERD is productive of considerable impairment of health and a 30 percent rating is warranted for the entire period on appeal.

Accordingly, and affording the Veteran the benefit of the doubt, the Board finds that a 30 percent evaluation for GERD is warranted for the entire period on appeal, from August 23, 2018.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.114, DC 7399-7346, Lynch, 21 F.4th at 776.

To this extent the appeal is granted.  The question of whether a rating in excess of 30 percent is warranted will be addressed below.

REASONS FOR REMAND

1. Entitlement to a disability rating in excess of 30 percent for GERD

In any claim for an increased rating, the Board must consider whether the Veteran is entitled to the maximum rating allowed for that disability.  A.B. v. Brown, 6 Vet. App. 35 (1993).

While the evidence of record is sufficient to show that the Veteran's GERD  resulted in considerable impairment of health, the record is unclear whether the severity of the Veteran's GERD would warrant a disability rating greater than 30 percent.  

While the Board regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's appeal. 

A review of the Veteran's file reveals that there are private treatment records related to the Veteran's claim that were not sought prior to the AMA decision on appeal.  VA treatment records indicate that the Veteran received care from a private health care provider for management of his GERD.  See e.g., April 2021 CAPRI, pharmacy note of November 5, 2020, indicating GERD-related prescriptions from non-VA provider G. Thompson.

The failure to attempt to obtain the above records constitutes a pre-decisional duty to assist error, as they may contain information which could help substantiate the Veteran's claim.  Accordingly, a remand is warranted so appropriate attempts may be made to obtain the outstanding records.  38 C.F.R. §§ 3.159(c)(1), 20.802(a).

2. Entitlement to service connection for eosinophilic esophagitis, to include as secondary to service-connected GERD

Medical evidence of record for the period on appeal indicates that the Veteran's GERD may be associated with eosinophilic esophagitis.  See September 2020 Medical Treatment Record - Non-Government Facility, May 2019 gastrointestinal pathology report.  

In Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021), the Court held that the Board is  required to develop and adjudicate related claims for secondary service connection  for disabilities that are reasonably raised during the adjudication of a formally  initiated claim for an increased rating for a primary service-connected disability.  

Given the above, the Board finds that a separate claim for secondary service  connection for eosinophilic esophagitis is reasonably raised as part of this appeal.  As the evidence of record indicates that eosinophilic esophagitis may have been associated with the Veteran's GERD, a VA examination should have been obtained to determine its probable etiology.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i);  McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 

The AOJ's failure to obtain a VA examination is a pre-decisional error requiring  remand.  38 U.S.C. § 5103A; 20 C.F.R. § 20.802(a).

The
 as part of this appeal.  As the evidence of record indicates that eosinophilic esophagitis may have been associated with the Veteran's GERD, a VA examination should have been obtained to determine its probable etiology.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i);  McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 

The AOJ's failure to obtain a VA examination is a pre-decisional error requiring  remand.  38 U.S.C. § 5103A; 20 C.F.R. § 20.802(a).

The matters are REMANDED for the following actions:

1. Make appropriate efforts to obtain the Veteran's private treatment records pertinent to GERD, including from private gastroenterologist Dr. G.T., for the period from August 2018, and associate them with the claims file.  If the records cannot be obtained and associated with the claims file, the claims file should be so documented, and the Veteran and his representative should be so notified and given the opportunity to provide the records.

2. After receiving all additional records, schedule the Veteran for an appropriate VA examination to assess the severity of the Veteran's GERD and to determine the nature and etiology of any eosinophilic esophagitis disability.  The claims file must be made available to the examiner and reviewed in conjunction with the examination.  Any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. 

(a.) After the record review and examination, the examiner should provide an assessment of the severity of the Veteran's GERD for the period on appeal from August 2018.

(b.) The examiner should also provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran has eosinophilic esophagitis, that is caused or aggravated by the Veteran's service connected GERD.

(c.) The VA examiner is reminded that an adequate secondary service connection medical opinion must provide a rationale discussing causation and aggravation as two separate inquiries.  See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013); see also Atencio v. O'Rourke, 30 Vet. App. 74, 91 (2018) (causation and aggravation are independent concepts and should have separate findings and rationales). 

(d.) Any opinion expressed by the examiner should be accompanied by a complete rationale.  If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided.

 

 

Michael J. Skaltsounis

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Horan, Deborah E.

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.