HIATAL HERNIA

Summary

The veteran, who served in the United States Army Reserve from August 13, 1984, to August 25, 1984, with additional Reserve service, appealed the denial of an increased rating for gastroesophageal reflux disease (GERD) with esophagitis and paraoesophageal hernia, and esophageal stricture. The veteran sought a rating higher than the 30 percent awarded for GERD and esophageal stricture. The Board reviewed the case under both pre-amended and amended rating criteria for digestive system conditions. The veteran submitted extensive lay statements detailing severe symptoms including dysphagia, reflux, vomiting, and the need to sleep upright in a recliner due to GERD, along with significant medication regimens. A VA examination in December 2020 noted moderate esophageal stricture and symptoms requiring continuous medication, while a December 2024 examination highlighted severe reflux and difficulty with food intake. The Board found the pre-amended criteria more favorable, granting a 60 percent rating for GERD, esophagitis, and paraoesophageal hernia based on severe impairment of health, applying the benefit of the doubt. The claim for an increased rating for esophageal stricture was denied as the evidence did not meet the criteria for a higher evaluation. The Board also remanded claims for an increased rating for asthma and for special monthly compensation (SMC) based on aid and attendance, citing duty to assist errors in the prior adjudication of the asthma claim and the interconnectedness of the SMC claim.

Rationale

Pre-amended criteria more favorable; Symptoms cause severe impairment of health; Rated by analogy under DC 7346

Full Decision Text

Citation Nr: A26039749
Decision Date: 04/28/26	Archive Date: 04/28/26

DOCKET NO. 251025-607169
DATE: April 28, 2026

ORDER

An initial rating of 60 percent, but no more, for gastroesophageal reflux disease (GERD) with esophagitis and paraoesophageal hernia is granted.

Entitlement to an initial rating greater than 30 percent for esophageal stricture is denied.

REMANDED

Entitlement to an initial rating greater than 30 percent for asthma is remanded.

Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded.

FINDINGS OF FACT

1. Throughout the entire appeal period, the Veteran's GERD, esophagitis, and paraoesophageal hernia resulted in dysphagia, pyrosis, reflux, regurgitation, substernal pain, sleep disturbance, nausea, indigestion, and vomiting causing severe impairment of health.

2. Throughout the entire appeal period, the Veteran's esophageal stricture has resulted in moderate symptomology but has not restricted her to consumption of liquids only.

CONCLUSIONS OF LAW

1. The criteria for an initial rating of 60 percent, but no more, for GERD with esophagitis and paraoesophageal hernia have been met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.2, 4.3, 4.7, 4.10, 4.21, 4.114, Diagnostic Code (DC) 7346.

2. The criteria for an initial rating greater than 30 percent for esophageal stricture have not been met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.2, 4.3, 4.7, 4.10, 4.21, 4.114, DC 7302.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army Reserve from August 13, 1984, to August 25, 1984.  She had additional service in the Army Reserve.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2025 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).  

In an October 2025 VA Form 10182, Notice of Disagreement (NOD), the Veteran elected the direct review docket.  Therefore, the Board may only consider the evidence of record before the Agency of Original Jurisdiction (AOJ) at the time of its decision on the issues on appeal.  See 38 C.F.R. §§ 20.300(a), 301.  The Board will not consider evidence received after the AOJ decision unless the claimant files a timely request for a Board hearing or an opportunity to submit additional evidence on the NOD.  38 C.F.R. § 20.301.  The Veteran has not filed such a request.  If additional evidence was submitted after the AOJ decision, the Board will not consider it.  The Veteran is welcome to file a supplemental claim to have this evidence considered.  Cook v. McDonough, 36 Vet. App. 175 (2023).  However, because the Board is remanding the increased rating appeal for asthma  and the appeal for SMC, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims.  38 C.F.R. § 3.103(c)(2)(ii).

The Board notes that the Court of Appeals for Veterans Claims (Court) held in Williams v. McDonough, 37 Vet. App. 305 (2024), that the Board cannot adjudicate an appeal until the appellant's time to switch Board dockets within the modernized review system (AMA) has elapsed, unless the appellant submits a waiver.  Here, the Veteran's NOD was filed in October 2025 and the AOJ decision on appeal is from July 2025.  While the record lacks a waiver of the remaining period to switch AMA Board dockets, the appeal has been advanced on the docket (AOD) by the Veteran's own motion and, therefore, expedited treatment is necessary.  The Board finds implicit waiver of the remaining time under these circumstances.  See Janssen v. Principi, 15 Vet. App. 370 (2001) (generally holding that unless there is a specific pre
 appellant's time to switch Board dockets within the modernized review system (AMA) has elapsed, unless the appellant submits a waiver.  Here, the Veteran's NOD was filed in October 2025 and the AOJ decision on appeal is from July 2025.  While the record lacks a waiver of the remaining period to switch AMA Board dockets, the appeal has been advanced on the docket (AOD) by the Veteran's own motion and, therefore, expedited treatment is necessary.  The Board finds implicit waiver of the remaining time under these circumstances.  See Janssen v. Principi, 15 Vet. App. 370 (2001) (generally holding that unless there is a specific preclusion to doing so, parties are generally permitted to waive the application of statutes intended for their benefit).

The Board notes that in a brief submitted with the Veteran's July 2025 supplemental claim, her attorney included boilerplate language regarding several topics (new and relevant evidence, examination adequacy, total disability rating based on individual unemployability, etc.).  It appears that he just included a lot of tenets of basic veterans law, as no specific arguments were made concerning this Veteran regarding those topics.  Without any specificity, the Board finds that this copied-and-pasted boilerplate does not raise new or additional issues not already considered herein.  

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

Increased Ratings

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  The percentage ratings 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 civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  Effective dates chosen for staged ratings are not mechanically assigned to the date of the VA examination but instead depends on when a change in disability level can be "ascertained."  Swain v. McDonald, 27 Vet. App. 219, 224 (2015).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of his symptoms.  Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).  

Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 4.3.  Where there is a question as to which of two evaluations shall be applied, the higher rating 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.

1.	Gastrointestinal Disabilities 

Service connection for the Veteran's service-connected GERD was granted 10 percent disabling, effective June 21, 2016, in a January 2021 rating decision.  She appealed the evaluation and in a March 2023 rating decision, a 30 percent rating was awarded, effective June 21, 2016.  The Veteran appealed the assigned evaluation, which was subsequently denied by the Board in a November 2024 decision.  She submitted a supplemental claim in July 2025 and in the July 2025 rating decision on appeal, the 30 percent rating was continued.  The Veteran has continuously pursued her claim for an increased rating since the initial grant of service connection.  Accordingly, the Board will consider entitlement
 

Service connection for the Veteran's service-connected GERD was granted 10 percent disabling, effective June 21, 2016, in a January 2021 rating decision.  She appealed the evaluation and in a March 2023 rating decision, a 30 percent rating was awarded, effective June 21, 2016.  The Veteran appealed the assigned evaluation, which was subsequently denied by the Board in a November 2024 decision.  She submitted a supplemental claim in July 2025 and in the July 2025 rating decision on appeal, the 30 percent rating was continued.  The Veteran has continuously pursued her claim for an increased rating since the initial grant of service connection.  Accordingly, the Board will consider entitlement to a rating in excess of 30 percent from the June 21, 2016, date of claim.

Service connection for the Veteran's service-connected esophageal stricture was granted at 30 percent disabling, effective, June 21, 2016, in a November 2024 Board decision and effectuating rating decision.  She submitted her July 2025 supplemental claim within a year, seeking a higher evaluation.  In the July 2025 rating decision on appeal, the 30 percent rating was continued.  The Veteran has continuously pursued her claim for an increased rating since the initial grant of service connection.  Therefore, the Board will consider entitlement to a rating in excess of 30 percent from the June 21, 2016, date of claim.

The Veteran's service-connected GERD is rated under 38 C.F.R. § 4.114, DC 7346, and her esophageal stricture are rated under 38 C.F.R. § 4.114, DC 7203.

Effective May 19, 2024, VA amended the schedule of ratings for the digestive system under 38 C.F.R. § 4.114.  Where the rating criteria are amended during the course of an appeal, both the old and new versions of the rating criteria must be considered, and whichever is more favorable to the veteran will be applied.  However, should an increased rating be warranted under the revised criteria, the effective date of such award shall not be earlier than the effective date of the revision.  Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).  

Prior to May 19, 2024, the schedule of ratings for the digestive system did not contain a diagnostic code specifically for GERD.  When a condition does not have a listed diagnostic code, it can be rated analogously to-and given the associated disability rating of-a listed disease or injury, provided the affected functions, anatomical location, and symptomatology of the veteran's condition are "closely analogous" to those of the listed disease or injury.  Webb v. McDonough, 71 F.4th 1377, 1378-79 (Fed. Cir. 2023) (citing Lendenmann v. Principi, 3 Vet. App. 345, 350 (1992)).  The selection of a diagnostic code when rating by analogy concerns a question of fact.  See Herrington v. Collins, 138 F.4th 1324 (Fed. Cir. 2025).  When rating by analogy under 38 C.F.R. § 4.20, the unlisted condition is not required to precisely meet the criteria for the diagnostic code of a listed disease or injury.  See Webb, 71 F.4th at 1381.

Prior to May 19, 2024, GERD was often rated by analogy to hiatal hernia under DC 7346.  Under DC 7346, a 10 percent rating is warranted for two or more of the symptoms for the 30 percent evaluation, though of less severity.  A 30 percent rating 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 rating 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.

DC 7346 does not define the terms "persistently recurrent," "considerable impairment of health," or "severe impairment of health."  As with any regulatory interpretation where the terms are not defined in the regulation and are otherwise unambiguous, the Board presumes those terms carry their ordinary dictionary meaning.  See Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019); Moody v. Wilkie
 of health.  A 60 percent rating 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.

DC 7346 does not define the terms "persistently recurrent," "considerable impairment of health," or "severe impairment of health."  As with any regulatory interpretation where the terms are not defined in the regulation and are otherwise unambiguous, the Board presumes those terms carry their ordinary dictionary meaning.  See Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019); Moody v. Wilkie, 30 Vet. App. 329, 336 (2018).  The Merriam-Webster Dictionary defines persistent as "existing for a long or longer than usual time or continuously;" recurrent as "returning or happening time after time;" considerable as "large in extent or degree;" and severe as "of a great degree."  See https://www.merriam-webster.com. 

When, as with the pre-amended regulations, a diagnostic code does not specifically mention medication in the criteria, the Board must take "due consideration" that the beneficial effects of medication are discounted in assessing the severity of the disability.  See Ingram v. Collins, 38 Vet. App. 130 (2025).  

Prior to May 19, 2024, DC 7203 pertaining to esophageal stricture provided for a 30 percent rating for moderate stricture; a 50 percent rating for severe stricture, permitting liquids only; and an 80 percent rating for stricture permitting passage of liquids only, with marked impairment of general health.

Effective May 19, 2024, a new diagnostic code specific to GERD (DC 7206) was introduced.  The rating criteria for DC 7203 were also amended.  The new rating criteria for DC 7206 mirror the new rating criteria for DC 7203.  

Under both DCs 7203 and 7206, a noncompensable rating is warranted for a documented history of esophageal stricture(s) without daily symptoms or requirement for daily medications.  A 10 percent rating is warranted for a documented history of esophageal stricture(s) that requires daily medications to control dysphagia otherwise asymptomatic.  A 30 percent rating is warranted for a documented history of recurrent esophageal stricture(s) causing dysphagia which requires dilatation no more than 2 times per year.  A 50 percent rating is warranted for a documented history of recurrent or refractory esophageal stricture(s) causing dysphagia which requires at least one of the following (1) dilatation 3 or more times per year, (2) dilatation using steroids at least one time per year, or (3) esophageal stent placement.  An 80 percent rating is warranted for a documented history of recurrent or refractory esophageal stricture(s) causing dysphagia with at least one of the symptoms present: (1) aspiration, (2) undernutrition, and/or (3) substantial weight loss as defined by 38 C.F.R. § 4.112(a) and treatment with either surgical correction of esophageal stricture(s) or percutaneous esophago-gastrointestinal tube (PEG tube).  38 C.F.R. § 4.114.

38 C.F.R. § 4.112(a) defines "substantial weight loss" as involuntary loss greater than 20 percent of the individual's baseline weight, sustained for three months. with diminished quality of self-care or work tasks. 

Findings must be documented by barium swallow, computerized tomography, or esophagogastroduodenoscopy.  38 C.F.R. § 4.114, Note (1).  Non-gastrointestinal complications of procedures should be rated under the appropriate system.  Id. at Note (2).  The diagnostic code also applies to, but is not limited to, esophagitis, mechanical or chemical; Mallory Weiss syndrome (bleeding at junction of esophagus and stomach due to tears) due to caustic ingestion of alkali or acid; drug-induced or infectious esophagitis due to Candida, virus, or other organism; idiopathic eosinophilic, or lymphocytic esophagitis; esophagitis due to radiation therapy; esophagitis due to peptic stricture; and any esophageal condition that requires treatment with sclerotherapy.  Id. at Note (3).  Recurrent esophageal stricture is defined as the inability to maintain target
 (2).  The diagnostic code also applies to, but is not limited to, esophagitis, mechanical or chemical; Mallory Weiss syndrome (bleeding at junction of esophagus and stomach due to tears) due to caustic ingestion of alkali or acid; drug-induced or infectious esophagitis due to Candida, virus, or other organism; idiopathic eosinophilic, or lymphocytic esophagitis; esophagitis due to radiation therapy; esophagitis due to peptic stricture; and any esophageal condition that requires treatment with sclerotherapy.  Id. at Note (3).  Recurrent esophageal stricture is defined as the inability to maintain target esophageal diameter beyond 4 weeks after the target diameter has been achieved.  Id. at Note (4).  Refractory esophageal stricture is defined as the inability to achieve target esophageal diameter despite receiving no fewer than 5 dilatation sessions performed at 2-week intervals.  Id. at Note (5).

When more than one rating is warranted under certain diagnostic codes for the digestive system, specifically DCs 7301 through 7329 inclusive, 7331, 7342, 7345 through 7350 inclusive, 7352, and 7355 through 7357 inclusive, a single evaluation will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.  See 38 C.F.R. § 4.114.

DC 7203 and DC 7206 now contemplate therein the use of medication.  Although not applicable retroactively, the change in law is relevant insofar as understanding what the prior diagnostic code meant.  See Greer v. McDonough, 36 Vet. App. 220, 226 (2023) (a subsequent law may be used to ascertain what Congress understood "its own prior acts to mean").

Turning to the relevant evidence of record, prior to the appeal period, the Veteran was diagnosed with GERD, gastritis, esophagitis with ulcer, paraesophageal hernia, diaphragmatic hernia, and esophageal stricture.  She underwent several surgical interventions for her gastrointestinal conditions.  A May 2016 upper gastrointestinal (GI) endoscopy revealed severe GERD with Grade IV esophagitis with 8 cm paraesophageal hernia. 

In a June 2016 lay statement, the Veteran described difficulty swallowing, choking episodes and sensations of chest pressure, food being stuck in mid-chest region, retching; esophageal and chest discomfort, pressure, and burning.  She also reported difficulty clearing her voice at times, stating that people said she sounded like a man and they could barely hear her.  She noted that she was in a generalized weakened state, spent most of her life in an upright sitting position, and had to wait 2 to 3 hours after ingesting any food, water, or pills before she could lay flat, exercise, walk, or bend over due to immediate reflux.  She spent her day in a recliner and also slept in a recliner.  The Veteran said that she must plan for and eat small, frequent, non-acidic, non-irritating, non-triggering foods at frequent intervals and take anti-emetic medicine around-the-clock.  She noted that she had to adjust and plan for taking all of her GERD medications (antacids, proton pump inhibitors, H2 blockers, viscous of Lidocaine numbing medicine, Mylanta, Bismuth, Carafate, and Zofran) at prescribed intervals a half-hour before and or 1-hour after eating or taking other medications.  The Veteran reported that she was on about 20 medications and took about 50 or more doses of medication per day.  The Veteran further prescribed difficulties with eating, swallowing, coughing, and breathing.  

Additionally, the Veteran submitted photographs with captions explaining them in June 2016.  One caption explained that the Veteran eats all of her meals sitting upright in her recliner to promote digestion of her food and to try to prevent her GERD from refluxing her food.  She noted that she "does retch & vomit after many meals and takes medicine to stop this, but her strong GERD prevents getting her symptoms controlled."  Another states that the Veteran "must keep her legs elevated at all times except when she is walking to the bathroom or walking to promote circulation and prevent blood clots. She must keep her canes and walker right next to her, she can't take a step without support."  Another caption indicated that the Veteran "spends her day sitting upright, even sleeps in her recliner.  When she lays flat,
 the Veteran eats all of her meals sitting upright in her recliner to promote digestion of her food and to try to prevent her GERD from refluxing her food.  She noted that she "does retch & vomit after many meals and takes medicine to stop this, but her strong GERD prevents getting her symptoms controlled."  Another states that the Veteran "must keep her legs elevated at all times except when she is walking to the bathroom or walking to promote circulation and prevent blood clots. She must keep her canes and walker right next to her, she can't take a step without support."  Another caption indicated that the Veteran "spends her day sitting upright, even sleeps in her recliner.  When she lays flat, even 3-4 hours after eating, her reflux from GERD will bring acids into her mouth, so she must never lay flat.  Putting her bed on blocks did not work."

A home health aide that worked with the Veteran submitted a statement in June 2016.  She stated that the Veteran had chest burning all of the time for which she took 6 different medications.  Her appetite was noted to range from "25-75" so she ate small meals and only ate once a day.

Another aide submitted a statement in June 2016.  She said that the Veteran had to sleep in her recliner to prevent acid reflux and so spent all day and night in her recliner.  

The Veteran also submitted documentation showing a prescription for Carafate for her various GI conditions.  

The Veteran underwent a VA examination in December 2020.  She stated that her current symptoms included indigestion, reflux, nausea, vomiting, nocturnal awakening, and regurgitation.  Current treatment included Mylanta and Bismuth.  She had previously been treated with five surgeries.  The examiner indicated that her condition required continuous medication of Mylanta and Bismuth.  Signs and symptoms of an esophageal condition included dysphagia, pyrosis, reflux, regurgitation, substernal pain, sleep disturbance caused by esophageal reflux (4 or more times per year lasting less than a day), nausea (four or more times per year lasting less than a day), and vomiting (four or more times per year lasting less than a day.  The examiner indicated the Veteran has esophageal stricture, which was amenable to dilation, was moderate, and resulted in intermittent dysphagia.  The examiner determined that the functional impact of the condition was fatigue secondary to nocturnal awakening, decreased focus and concentration secondary to nausea, vomiting, regurgitation, and dysphagia.  

A VA housebound/aid and attendance examination was conducted in December 2024.  The examiner noted that the Veteran had to wait 2 to 3 hours after ingesting any food, water, or pills due to immediate reflux of sour, gastric liquid burning her esophagus and coming up into her mouth.  Symptoms were noted to be the pain of eroded esophagus, esophagus burn, esophagus ulcers, not being able to sip water or eat more than 1 cup servings of food without a period of belching, sometimes retching, and discomfort afterwards.  

Along with the Veteran's July 2025 supplemental claim for increased ratings, she submitted articles about oral corticosteroids effect on esophageal acid, tips and tricks for success with laparoscopic Nissen fundoplication, and the effect of bronchodilators on forced vital capacity measurement in patients with idiopathic pulmonary fibrosis.  

Also submitted along with the supplemental claim, the Veteran's attorney argued that she had constant and continuous pain, pressure, burning sensations, torn diaphragm, internal hernia with tissue tears, chronic deep esophageal ulcers, and intermittent hemorrhaging.  The attorney stated that this was productive of severe impairment of health.  She was required to receive corticosteroids for her chronic asthma which increased esophageal acid.  He claimed that the article regarding oral corticosteroids may entitle her to new VA examinations.  The attorney did not contend that the Veteran's GERD symptomology had worsened since the last examination.  

The attorney also argued that a higher rating was warranted for esophageal stricture because she exceeded the qualifications for a higher rating.  She had taken and continued to take corticosteroids for her condition; had a long-documented history of esophageal stricture; and was in need of a stent but was not a good candidate for surgery.  Referencing one of the submitted articles, he stated that patients with significant esophageal dysmotility such as achalasia or severe esophageal motility disorders might not be suitable candidates for fundoplication.  The Veteran should not be denied higher compensation because she was not a good candidate for the
 the Veteran's GERD symptomology had worsened since the last examination.  

The attorney also argued that a higher rating was warranted for esophageal stricture because she exceeded the qualifications for a higher rating.  She had taken and continued to take corticosteroids for her condition; had a long-documented history of esophageal stricture; and was in need of a stent but was not a good candidate for surgery.  Referencing one of the submitted articles, he stated that patients with significant esophageal dysmotility such as achalasia or severe esophageal motility disorders might not be suitable candidates for fundoplication.  The Veteran should not be denied higher compensation because she was not a good candidate for the procedure.

In a brief submitted with the Veteran's October 2025 NOD, her attorney argued that she had an extraordinary disability picture that was entitled to extraschedular consideration.

A.	An initial rating of 60 percent, but no more, for GERD with esophagitis and paraoesophageal hernia is granted.

B.	Entitlement to an initial rating greater than 30 percent for esophageal stricture is denied.

Based on the foregoing, the Board finds, affording the Veteran the benefit of the doubt, that a 60 percent rating is warranted for her GERD with esophagitis and paraoesophageal hernia throughout the appeal period.  A rating in excess of 30 percent for esophageal stricture is not warranted at any point.

The Board has considered the Veteran's disability picture under both the pre-amended and amended criteria of 38 C.F.R. § 4.114.  The Board finds that the pre-amended criteria continue to be more favorable to her and will be applied herein.

Under the amended criteria, the Veteran would be entitled to only one rating for her digestive system conditions.  See 38 C.F.R. § 4.114.  Under the criteria of DC 7203 or DC 7206, the Veteran would only be entitled to a 30 percent rating.  There is no medical or lay evidence in the claims file of dilatation 3 or more times per year, dilatation using steroids at least one time per year, or esophageal stent placement.  As such the criteria for a 50 percent rating are not met.  However, as she has multiple service-connected digestive conditions (GERD, esophagitis, paraoesophageal hernia, and esophageal stricture), a single evaluation would be assigned under the diagnostic code that reflected the predominant disability picture and it would be elevated to the next higher evaluation.  Id.  As such, under the amended criteria, the Veteran would be entitled to one 50 percent rating under DC 7203-7206.  

The Veteran's current ratings under the pre-amended criteria of 30 percent for GERD, esophagitis, and paraoesophageal hernia and 30 percent for esophageal stricture combine to 50 percent.  As the Board is granting an increased rating herein under the pre-amended criteria resulting in a higher combined evaluation (70 percent), continuing to evaluate the disabilities under the pre-amended criteria is more advantageous for the Veteran.  

Throughout the appeal period, the Veteran's GERD, esophagitis, and paraoesophageal hernia resulted in dysphagia, pyrosis, reflux, regurgitation, substernal pain, sleep disturbance, nausea, indigestion, and vomiting.  There is no medical or lay evidence of material weight loss and hematemesis or melena with moderate anemia.  However, affording the Veteran's the benefit of the doubt, her symptoms cause severe impairment of health, particularly given her failed surgeries, inability to undergo additional surgery, required sleeping in an upright position, and required medication.  As her GERD is rated by analogy, the disability does not need to precisely meet the DC 7346 criteria.  See Webb, 71 F.4th at 1381.  

Accordingly, the Board finds that the Veteran's GERD, esophagitis, and paraoesophageal hernia warrants a 60 percent rating under DC 7346 throughout the entire appeal period.  

Under the pre-amended criteria, the Veteran's esophageal stricture does not restrict her to consumption of liquids only.  As such, the 50 percent criteria under DC 7203 have not been met.  This disability is not rated by analogy and as such, the lack of this particular complication is determinative.  Accordingly, a rating in excess of 30 percent under DC 7203 is not merited at any point.  As the evidence of record persuasively weighs against a rating in excess of 30 percent, the benefit-of-the-doubt rule does
, esophagitis, and paraoesophageal hernia warrants a 60 percent rating under DC 7346 throughout the entire appeal period.  

Under the pre-amended criteria, the Veteran's esophageal stricture does not restrict her to consumption of liquids only.  As such, the 50 percent criteria under DC 7203 have not been met.  This disability is not rated by analogy and as such, the lack of this particular complication is determinative.  Accordingly, a rating in excess of 30 percent under DC 7203 is not merited at any point.  As the evidence of record persuasively weighs against a rating in excess of 30 percent, the benefit-of-the-doubt rule does not apply.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

The Veteran's attorney contended that her disabilities warranted extraschedular ratings.  

The Court set out a three-part test (based on the language of 38 C.F.R. § 3.321(b)(1)) in Thun v. Peake for determining whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  See Thun v. Peake, 22 Vet. App. 111 (2008).  

The first part of the Thun analysis goes to the "symptoms" of the Veteran's disability versus those contemplated in the rating criteria and what can already be compensated by conventional means.  See Spellers, 30 Vet. App. at 218.  Assuming such symptoms exist, the second part of the Thun analysis pertains to the "effects" of any such symptom and whether the effects are unusual or exceptional.  Id.

Here, the Veteran's reported symptomology of dysphagia, pyrosis, reflux, regurgitation, substernal pain, sleep disturbance, nausea, indigestion, and vomiting are specifically contemplated in the DC 7346 criteria.  That criteria explicitly considers varying degrees of severity, frequency, and duration, as well as the overall impairment of health.  Dysphagia and again, the overall impairment of health, are contemplated in DC 7302.    

The Board notes that the Veteran has included symptomology of difficulty ambulating, having to use a walker or canes, and needing assistance in her descriptions of her GI-related symptoms.  See June 2016 lay statement and photoraphs.  However, there is no medical evidence in the claims file that her GERD or esophageal stricture causes any difficulty in ambulation.  Further, in an August 2016 questionnaire in support of her claim for aid and attendance benefits signed by a doctor, it was noted that the Veteran had cervical dystonia, lumbar/sacral pain with functional scoliosis of the spine which torqued her pelvis, hip, shoulders, and neck, causing her to limp and have an ataxic gait.  As this symptomology has been attributed to separate, nonservice-connected conditions, it need not be contemplated in the pertinent diagnostic codes.

As the Veteran's symptomology has been specifically contemplated in the DC 7346 and DC 7302 criteria, the established schedular criteria are not inadequate to describe the severity and symptoms of the disabilities.  See Thun, 22 Vet. App. at 111.  As such, the first part of the Thun test has not been met and the Board need not go further. 

Nonetheless, even if the Veteran arguably had a symptom not contemplated in the schedular criteria, the Board notes the record does not reflect that any of her disabilities' manifestations caused effects that were exceptional or unusual, such as frequent periods of hospitalization or marked interference with employment.  The assigned rating already contemplates severe impairment of health and, therefore, the Veteran's disability certainly causes some impairment on her employability.  However, there is no indication of unusual or "marked" interference with employment beyond what is contemplated in the rating schedule; the Veteran has provided no information at all regarding her employment status, whether she has missed work due to associated symptomology, etc.  Although she stays in a recliner all day, there is no indication that she could not be employed from her home.  Notably, she has not sought entitlement to a total disability based on individual unemployability due to
 her disabilities' manifestations caused effects that were exceptional or unusual, such as frequent periods of hospitalization or marked interference with employment.  The assigned rating already contemplates severe impairment of health and, therefore, the Veteran's disability certainly causes some impairment on her employability.  However, there is no indication of unusual or "marked" interference with employment beyond what is contemplated in the rating schedule; the Veteran has provided no information at all regarding her employment status, whether she has missed work due to associated symptomology, etc.  Although she stays in a recliner all day, there is no indication that she could not be employed from her home.  Notably, she has not sought entitlement to a total disability based on individual unemployability due to service-connected disabilities (TDIU) and has not claimed that her service-connected disabilities affect her employability.  A VA examiner found that the Veteran's focus and concentration would be impacted by her disabilities but did not find that work would be precluded.  Overall, the persuasive weight of the evidence does not support frequent hospitalizations, marked interference with employment, or any other unusual or exceptional effects.    

Accordingly, the Board finds that the 60 percent maximum schedular rating for the Veteran's GERD, esophagitis, and paraoesophageal hernia and the 30 percent schedular rating for esophageal stricture contemplate her specific symptomology.  Further, her condition has not resulted in an exceptional or unusual disability picture warranting extraschedular evaluation.  As such, a rating in excess of 60 percent is not warranted for GERD, esophagitis, and paraoesophageal hernia and a rating in excess of 30 percent is not merited for esophageal stricture.

The Board determines that the disabilities are fully capable of evaluation under the rating schedule.  There is no applicable provision that would warrant higher ratings in this case. 

The appeal is, thus, granted insofar as an initial rating of 60 percent, but no more for GERD is warranted; but denied insofar as an initial rating greater than 30 percent for esophageal stricture is not warranted. 

REASONS FOR REMAND

1. Entitlement to an initial rating greater than 30 percent for asthma is remanded.

The Veteran has contended that a higher rating is warranted for her service-connected asthma.  The Board finds that a pre-decisional duty to assist error has occurred which must be corrected before a decision may be rendered.  See 38 C.F.R. § 20.802.

Two VA examination reports are in the claims file.  The Veteran has not attended a VA examination.  An examination in December 2020 was conducted via Acceptable Clinical Evidence (ACE) process and interview due to the COVID-19 pandemic.  The examiner found that her asthma did not require the use of oral or parenteral corticosteroid medications, oral bronchodilators, or use of antibiotics.  It did require use of daily inhalational bronchodilator therapy and outpatient oxygen therapy that was not continuous.  Another examination was scheduled for November 2023.  It was again conducted via ACE process because the Veteran did not attend a pulmonary function test (PFT) as scheduled.  That examiner determined that the Veteran did not have asthma and found that she had no treatment for the condition.

Following the Veteran's July 2025 supplemental claim, no new VA examination was scheduled.  The Board finds that this constitutes a pre-decisional duty to assist error.  The last examination report in the claims file found that the Veteran did not even have the disability for which she was examined.  She is, however, clearly service-connected for the disability.  As such, a new evaluation of the disability was needed.  Further, there are indications in the claims file that the Veteran may now be prescribed a corticosteroid.  See July 2025 attorney brief.  It is unclear whether such medication is used to treat her service-connected asthma.  As such, clarification was needed.

Accordingly, a new VA examination should have been conducted prior to the rating decision on appeal.  As such, upon remand, a new examination should be obtained.  

2. Entitlement to SMC based on the need for aid and attendance is remanded.

As the asthma increased rating claim is being remanded for further development, a decision regarding the claim for SMC is premature.  As such, the issue is inextricably intertwined with the claim and is remanded herein.  See Harris v. Derwinski, 1 Vet. App. 180 (1991).

Regarding all claims remanded herein, the Board is mindful of the holding in Smith v. Wilkie, 32 Vet. App. 332 (2020), and the impact of implicit credibility determinations within remand orders. 
.  As such, upon remand, a new examination should be obtained.  

2. Entitlement to SMC based on the need for aid and attendance is remanded.

As the asthma increased rating claim is being remanded for further development, a decision regarding the claim for SMC is premature.  As such, the issue is inextricably intertwined with the claim and is remanded herein.  See Harris v. Derwinski, 1 Vet. App. 180 (1991).

Regarding all claims remanded herein, the Board is mindful of the holding in Smith v. Wilkie, 32 Vet. App. 332 (2020), and the impact of implicit credibility determinations within remand orders.  The Board does not at this time make any determinations regarding the credibility of any evidence currently of record, to include those described in this remand.

The matters are REMANDED for the following action:

1. Schedule the Veteran for an appropriate VA examination to assess the current severity of her asthma.  The Veteran should be advised of the importance of attending the examination.  The record should be made available and the examiner's review of the record should be indicated.  All appropriate tests and studies should be conducted to include current PFT testing, unless medically contraindicated, and all clinical findings reported in detail.  The report should include all subjective complaints and objective symptoms.  In addition to objective test results, the examiner should fully describe the practical effects caused by the disability.  The examiner should include a rationale with all opinions.  The examiner is explicitly asked to discuss whether current treatment for asthma includes any oral or parenteral corticosteroid medication and the frequency of treatment.  

2. After the above development, and any additionally indicated development, has been completed, readjudicate the claims.

 

 

SHEREEN M. MARCUS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Rachel E. Jensen, Counsel

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.