POSTTRAUMATIC STRESS DISORDER (PTSD)

Summary

The veteran, who served from April 2006 to June 2007 and July 2008 to July 2012, including combat service, appeals the rating decision for PTSD, GERD, and bilateral elbow strains. The Board granted a 70 percent rating for PTSD, finding that the veteran's symptoms, including anxiety, irritability, memory issues, and obsessive security behaviors, met the criteria for this rating throughout the appeal period, resolving reasonable doubt in his favor. The Board also granted service connection for left and right elbow strains, finding that the veteran's testimony of in-service pain and tingling, consistent with his current diagnosis and combat service, met the criteria for service connection, particularly under the combat veteran presumption. For GERD, the Board reviewed both legacy and new rating criteria, ultimately finding that the veteran's testimony of recurrent epigastric distress, dysphagia, and regurgitation, while significant, did not meet the criteria for a 30 percent rating under either the old or new schedules, nor did it meet the criteria for higher ratings. Therefore, the GERD claim was granted at 10 percent, consistent with the existing rating.

Rationale

Lay and medical evidence demonstrate symptoms of anxiety, irritability, memory loss, obsessive security behaviors, and difficulty adapting to stressful circumstances.; Veteran's testimony and records show deficiencies in most areas of occupational and social impairment.; Reasonable doubt resolved in favor of the Veteran, approximating the criteria for a 70 percent rating.

Full Decision Text

Citation Nr: A26040116
Decision Date: 04/29/26	Archive Date: 04/29/26

DOCKET NO. 210118-134317
1DATE: April 29, 2026

ORDER

Entitlement to a 70 percent rating for service-connected posttraumatic stress disorder (PTSD) prior to July 29, 2024, is granted.

Entitlement to a rating of 30 percent disabled, but no higher, for a gastroesophageal reflux disease (GERD) is granted.

Entitlement to service connection for a left elbow strain is granted.

Entitlement to service connection for a right elbow strain is granted.

FINDINGS OF FACT

1. During the entire appeal period, the Veteran's PTSD has more nearly approximated occupational and social impairment with deficiencies in most areas such as such as work, family relations, thinking and mood.

2. During the course of the appeal, the Veteran manifested symptomology that most closely resembles persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.

3. The Veteran's left and right elbow strains manifested during combat service.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a 70 percent rating for service-connected PTSD prior to July 29, 2024, have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10, 4.130, Diagnostic Code (DC) 9411.

2. The criteria for entitlement to a rating of 30 percent disabled, but no higher, for GERD have not been met.  38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?3.102, 4.1-4.7, 4.10, 4.114, DC 7346.

3. The criteria for entitlement to service connection for left elbow strain have been met.  38?U.S.C. §§?1110, 1154(b), 5107; 38?C.F.R. §?3.303.

4. The criteria for entitlement to service connection for right elbow strain have been met.  38?U.S.C. §§?1110, 1154(b), 5107; 38?C.F.R. §?3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty, including service in combat, from April 2006 to June 2007 and July 2008 to July 2012.

The rating decision on appeal was issued in September 2020; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.  In the January 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket.  Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal and within 90 days of the Board hearing.  38?C.F.R. § 20.301.  

Under the Legacy system, the Board decided the appropriate rating to be assigned up to the date of the Board decision.  The AMA statutes and regulations are silent as to when the rating period on appeal ends.  Although not precedential in nature, a Memorandum Decision by the Court of Appeals for Veterans Claims (the Court) addressed whether the rating period on appeal could end at the date of the AOJ decision on appeal rather at the time of the Board decision.  In Meuzelaar v. McDonough, 2024 U.S. App. Vet. Claims LEXIS 446 (March 28, 2024), the Court specifically noted "we cannot find any statute or regulation that supports such an interpretation of the AMA."  See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge memorandum decisions may be relied upon for any persuasiveness or reasoning they contain). 

The Board finds this reasoning as persuasive.  Congress is presumed to be aware of the scope of the Board's adjudicative actions in the Legacy system and, while limiting the Board's development authority and streamlining evidentiary lanes in the AMA system, Congress did not speak to limiting the appeal period for consideration.  See Jackson v. McDonough, 37 Vet. App. 277, 290 (2024), citing Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 176
 Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge memorandum decisions may be relied upon for any persuasiveness or reasoning they contain). 

The Board finds this reasoning as persuasive.  Congress is presumed to be aware of the scope of the Board's adjudicative actions in the Legacy system and, while limiting the Board's development authority and streamlining evidentiary lanes in the AMA system, Congress did not speak to limiting the appeal period for consideration.  See Jackson v. McDonough, 37 Vet. App. 277, 290 (2024), citing Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 176, 108 S. Ct. 1704, 100 L. Ed. 2d 158 (1988) ("We generally presume that Congress is knowledgeable about existing law pertinent to the legislation it enacts.") and Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 382 n.66, 102 S. Ct. 1825, 72 L. Ed. 2d 182 (1982) ("Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change.  So too, where, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute."  Absent any specific statutory language to the contrary, the Board finds that the implementation of the AMA did not alter the Legacy feature that the appeal period ends at the time of the Board decision.  Thus, the Board considers the appropriate rating up to the date of this decision.

The Veteran's claim for a higher rating for PTSD has been in multiple AMA lanes since an August 2019 AOJ decision.  In an earlier AMA appeal from the August 2019 AOJ decision (stemming from a May 23, 2019, application for an increased rating), the Veteran testified in February 2024 regarding his entitlement to a rating in excess of 50 percent for PTSD as well as his entitlement to service connection for TBI.  A May 2024 Board decision under Docket Number 200714-97113 granted service connection for TBI and remanded the claim for a higher rating for PTSD on the basis that a July 2019 VA examination did not consider a December 2018 VA clinic record diagnosing TBI.  

The Veteran also filed a VA Form 21-226 EZ claiming an increased severity of PTSD in "2020."  The evidentiary window for this appeal, stemming from a September 2020 AOJ rating decision, included an additional VA examination conducted in September 2020.  This examiner noted that the Veteran had filed a TBI claim, but stated the Veteran did not have a TBI diagnosis without any mention of the December 2018 VA clinic record diagnosing TBI.  Under the terms of the prior Board remand, a duty to assist error likely remains given that ratings for PTSD and TBI are closely intertwined.

Yet, the Veteran did appear before the undersigned in August 2024 and the Veteran's attorney elected to refrain from providing testimony on the PTSD claim in lieu of resubmitting the February 2024 Board hearing testimony within 90 days of the August 2024 hearing.  The February 2024 hearing transcript was not technically resubmitted, but the clear reference to requesting the Board to review this hearing transcript meets the definition of "submit" under Cash v. Collins, 166 F.4th 1046 (Fed. Cir. 2026).

Nonetheless, the record reflects a significant amount of evidence outside of the evidentiary window ultimately leading to a January 2025 AOJ decision which awarded a 40 percent rating for TBI effective May 23, 2019, and a 70 percent rating for PTSD effective July 29, 2024. The Board cannot review the medical evidence leading to these awards.  The Board is bound, however, by favorable findings of fact within the January 2025 rating decision.  38 C.F.R. § 3.104(c).  

In addition, the Veteran has filed a March 2025 Board appeal for entitlement to a rating in excess of 70 percent for PTSD leading to the January 2025 AOJ decision discussed above.  The Veteran has requested a Board hearing on this matter which may be duplicative, in part, to the current issue before the Board.

The February 2024 hearing transcript, which is part of the evidence for this appeal, included the statement by the Veteran's attorney that
29, 2024. The Board cannot review the medical evidence leading to these awards.  The Board is bound, however, by favorable findings of fact within the January 2025 rating decision.  38 C.F.R. § 3.104(c).  

In addition, the Veteran has filed a March 2025 Board appeal for entitlement to a rating in excess of 70 percent for PTSD leading to the January 2025 AOJ decision discussed above.  The Veteran has requested a Board hearing on this matter which may be duplicative, in part, to the current issue before the Board.

The February 2024 hearing transcript, which is part of the evidence for this appeal, included the statement by the Veteran's attorney that "[w]e do believe that 70 percent would satisfy this appeal with regard to PTSD" and the Veteran provided testimony regarding working in a substantially gainful occupation.  At the August 2024 hearing, the Veteran's attorney confirmed that the Veteran was not seeking a total disability rating based upon individual unemployability (TDIU).  In all, despite these procedural and evidentiary window issues, the main takeaway from the totality of the circumstances is that a 70 percent rating for this appeal period is the maximum benefit sought and that any technical procedural or duty to assist error would be non-prejudicial if the benefit sought on appeal was satisfied.  The Board has phrased the issue as entitlement to a 70 percent rating for PTSD for the time period prior to July 29, 2024.

Increased Rating

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.

Separate diagnostic codes identify various disabilities and the criteria for specific ratings.  Relevant regulations do not require that all cases show all findings specified by the Schedule; however, findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. §§ 4.7, 4.21.

If two disability 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.  After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran.  38 C.F.R. § 4.3.

In establishing an appropriate initial assignment of a disability rating, the proper scope of evidence includes all medical evidence submitted in support of the veteran's claim.  Fenderson v. West, 12 Vet. App. 119 (1999).  In cases where an assigned disability rating has been challenged or appealed, it is possible for a veteran to receive a staged rating.  A staged rating is an award of separate percentage evaluations for separate periods, based on the facts found during the appeal period.  Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings).

1. Entitlement to a rating in excess of 50 percent disabled for service-connected PTSD prior to July 29, 2024,

The Veteran currently has a staged rating of 50 percent prior to July 29, 2024, and 70 percent thereafter. 

Under the General Rating Formula for Mental Disorders, a 50 percent rating is assigned where there is evidence of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired
otyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful situations (including work or a work-like setting); and inability to establish and maintain effective relationships.

The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration."  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013).  Further, "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas."  Thus, "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'"  Id. at 118.

As such, the Board will consider both the Veteran's specific symptomatology as well as the occupational and social impairment associated with the rating code to determine whether an increased evaluation is warranted. 

Historically, the Veteran's personnel records reflect that he had over 240 combat missions during his military service.  His service treatment records reflect evaluations for combat stress with symptoms including insomnia; feeling down, depressed, or homeless; having little interest or pleasure in doing things; distressing nightmares; hypervigilance; and easy startle.

Post service, at a September 2015 VA examination, the Veteran described additional symptoms of obsessive security behaviors, distrust of others, emotional detachment, irritability, "routinely" experiencing road rage, and replaying of distressful events.  He further reported memory loss to the extent of forgetting dates and appointments.

VA clinic records in 2016 described the Veteran seeking treatment due to irritability and yelling at his children.

VA clinic records in 2018 reflect that the Veteran was formally diagnosed with TBI incurred in military service.  He described severe loss of appetite, very severe concentration, very severe forgetfulness, very severe slowed thinking/organization, very severe fatigue, severe sleep impairment, severe anxiety, and mild irritability. 

In more recent times, VA treatment records reflect the Veteran underwent a VA mental health consultation in February 2019.  During that consultation, the Veteran reported an "awesome" marriage of 18 years and a good relationship with his children and parents.  He also reported hobbies including fishing and shooting.  He was casually dressed and well-groomed, with intact orientation and good eye contact.  He had no abnormality of gait, posture, or demeanor.  He was cooperative, with a "mellow" mood and broad affect.  His memory functions and thought processes were intact, with no evidence of perceptual disorder.  He had good insight and judgment, and he denied suicidal ideation.  

March 2019 VA treatment records reflect that the Veteran reported anxiety, difficulty sleeping, fatigue, difficulty concentrating, irritability, and appetite changes.

In a May 2019 statement, the Veteran's spouse noted that the Veteran had to be constantly reminded of things such as weekend plans or simple conversations, and further noted that he experienced nightmares that sometimes caused him to awaken.  She described having to be patient with her husband.

Additionally, in a May 2019 statement, the Veteran reported symptomology that included a "terrible" memory, nightmares, and hypervigilance.  He described erratic driving behavior on the highway to avoid trash or debris, or slowing down below the speed limit before bridges to survey his surroundings for safety.  He also described being on high alert and being sensitive to normal noises in his current living
 fatigue, difficulty concentrating, irritability, and appetite changes.

In a May 2019 statement, the Veteran's spouse noted that the Veteran had to be constantly reminded of things such as weekend plans or simple conversations, and further noted that he experienced nightmares that sometimes caused him to awaken.  She described having to be patient with her husband.

Additionally, in a May 2019 statement, the Veteran reported symptomology that included a "terrible" memory, nightmares, and hypervigilance.  He described erratic driving behavior on the highway to avoid trash or debris, or slowing down below the speed limit before bridges to survey his surroundings for safety.  He also described being on high alert and being sensitive to normal noises in his current living environment since his combat deployments.

During a July 2019 VA disability benefits questionnaire (DBQ) examination, the examiner diagnosed the Veteran with PTSD.  The examiner determined that the Veteran's symptomology caused occupational and social impairment due to mild or transient symptoms.  The Veteran reported an 18-year marriage that "is going well."  He also reported employment as a night-shift security guard.  Upon examination, the Veteran's symptomology included depressed mood; anxiety; panic attacks occurring weekly or less often; chronic sleep impairment; mild memory loss; disturbance of mood and motivation; and difficulty adapting to stressful circumstances.  The examiner indicated that the Veteran was friendly.  As discussed above, the a prior Board remand determined this examination report was inadequate for failing to consider the December 2018 TBI assessment in the clinic setting.

The Veteran underwent a September 2020 VA DBQ examination which also did not acknowledge the December 2018 TBI assessment in the clinic setting.  The examiner determined that the Veteran's symptomology caused occupational and social impairment due to mild or transient symptoms.  The Veteran's symptomology included anxiety; suspiciousness; panic attacks occurring weekly or less often; chronic sleep impairment; mild memory loss; and difficulty adapting to stressful circumstances.  The examiner indicated that the Veteran was subdued in mood and described nightmares and hypervigilance from combat exposure.  Otherwise, this examination report reflects very little in the way of any specific description from the Veteran himself of the frequency, severity or duration of any particular symptom.

At the February 2024 hearing, the Veteran described anger, irritability, and concentration issues at work and home life.  He described his memory going "blank" at times.  His anger had manifested in situations such as shattering his daughter's cell phone, and slamming his son's video game unit.  He avoided crowds, due to anxiety and a feeling of being unsafe, which interfered with his social life with his spouse.  He obsessively checked his security measures for home defense.

As noted above, the Board cannot review the evidence relied upon by the AOJ in awarding a 70 percent rating effective July 29, 2024.  The Board may review the factual findings within the rating decision which included a finding that the Veteran's PTSD was manifested by symptoms of anxiety, depressed mood, difficulty in adapting to stressful circumstances, disturbances of motivation and mood, and flattened effect prior to July 29, 2024.  These findings reflected review of a June 18, 2024, VA examination report.  And, about one month later, the AOJ found an increased severity of PTSD based on a July 29, 2024 VA examination which purportedly showed additional symptoms of suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure or irrelevant; near continuous panic attack or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control such as unprovoked irritability with periods of violence); spatial disorientation; difficulty in adapting to stressful circumstances; and inability to maintain effective relationships.  While not being able to review this evidence, it would be highly unusual for the Veteran to have developed these additional symptoms over the course of one month.

A review of the record reveals that some of the symptoms found to be productive of PTSD occupational and social impairment with deficiencies in most areas in the January 2025 AOJ decision were present since the inception of this appeal.  For example, obsessional rituals which interfere with routine activities were described in 2015 and the hearing testimony in 2024 described excessive home security checks.  Some elements of panic affecting the ability to function independently were described in the Veteran's 2019 statement describing erratic driving behavior for unwarranted concerns that debris may be an IED or that harmful people may be lurking in bridge overpasses.  The Veteran testified to unprovoked irritability to the point of damaging his children's electronic devices which, notably, in 2016 he sought treatment due to his irritability and yelling at his children.  He had previously reported "routinely" experiencing road rage.  In 2018, the Veteran described
 of this appeal.  For example, obsessional rituals which interfere with routine activities were described in 2015 and the hearing testimony in 2024 described excessive home security checks.  Some elements of panic affecting the ability to function independently were described in the Veteran's 2019 statement describing erratic driving behavior for unwarranted concerns that debris may be an IED or that harmful people may be lurking in bridge overpasses.  The Veteran testified to unprovoked irritability to the point of damaging his children's electronic devices which, notably, in 2016 he sought treatment due to his irritability and yelling at his children.  He had previously reported "routinely" experiencing road rage.  In 2018, the Veteran described his anxiety, loss of appetite, concentration, forgetfulness, thinking/organization skills, fatigue, and sleep impairment as severe or worse.

Notably, the Veteran's statements recorded in the record either by way of written statements, VA examination reports or VA clinic records were not captured in the 2019 and 2020 VA examination reports.  The 2019 VA examination has already been deemed inadequate by the Board, and the 2020 VA examination has the same inadequacies.

In short, the Veteran had demonstrated examples for the 70 percent rating for PTSD rating since the inception of the appeal.  In the absence of evidence of any particular worsening of symptomatology, the Board resolves reasonable doubt in favor of the Veteran and finds that the lay and medical evidence more nearly approximates that the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas such as work, family relations, thinking and mood since the inception of this appeal.  As such, a uniform 70 percent rating is warranted for the entire appeal period.

As also discussed above, the Veteran's counsel has indicated that a uniform 70 percent rating for PTSD would satisfy the appeal and that entitlement to TDIU was not being sought.

2. Entitlement to a rating of 30 percent disabled, but no higher, GERD

The Veteran's GERD is currently rated 10 percent under 38 C.F.R. § 4.114, DC 7399-7346.  Hyphenated DCs are used when a rating under one DC (7399) requires the use of an additional DC to identify the basis for the rating assigned (7346).  

Under DC 7346, a 10 percent evaluation is warranted when two or more of the symptoms for the 30 percent evaluation are present with less severity.  A 30 percent rating is warranted where there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain productive of considerable impairment of health.  A 60 percent evaluation is warranted where 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, DC 7346.  

The terms "considerable," "impairment" and "health" are not defined in DC 7346. The only guidance provided by VBA refers to the regulatory framework at 38 C.F.R. § 4.112 which reflects the concepts of weight loss and nutrition.  See M21-1, Part V.iii.6.1.a.  The term "considerable" describes being large in extent or degree. www.merriam-webster.com/dictionary/considerable.  The term "impairment" is defined as diminishment or loss of function or ability. www.merriam-webster.com/dictionary/impairment.  The term "health" refers to the general condition of the body, a condition of being sound in body, mind or spirit, and a condition in which someone is thriving or doing well.  www.merriam-webster.com/dictionary/health.   

Effective May 19, 2024, VA amended the criteria for rating digestive system disabilities.  DC 7346 instructs to rate as stricture of the esophagus under DC 7203.  Also, effective May 19, 2024, the rating schedule now specifically lists GERD under DC 7206.

Under both DC 7203 and DC 7206, a 0 percent rating is assigned for a documented history without daily symptoms or requirement for daily medications.  A 10 percent rating is assigned for a documented history of esophageal stricture(s) that requires daily medications to control dysphagia otherwise asymptotic.  A 30 percent rating is assigned for a documented history of recurrent esophageal stricture(s) causing dysphagia that requires dilatation no more than two times per year.  A 50 percent rating
 stricture of the esophagus under DC 7203.  Also, effective May 19, 2024, the rating schedule now specifically lists GERD under DC 7206.

Under both DC 7203 and DC 7206, a 0 percent rating is assigned for a documented history without daily symptoms or requirement for daily medications.  A 10 percent rating is assigned for a documented history of esophageal stricture(s) that requires daily medications to control dysphagia otherwise asymptotic.  A 30 percent rating is assigned for a documented history of recurrent esophageal stricture(s) causing dysphagia that requires dilatation no more than two times per year.  A 50 percent rating is assigned for a documented history of recurrent or refractory esophageal stricture(s) causing dysphagia which requires at least one of the following (1) dilatation three 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 assigned 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 § 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, DCs 7203, 7206.

Generally, if a law or regulation changes during the pendency of a claim or an appeal, the Board must first determine whether the revised version is more favorable to the veteran.  In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation.  If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change.  The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change.

The Board will consider a claim under the old criteria prior to May 19, 2024, and both the old and new rating criteria from May 19, 2024.  The criteria that are more favorable to the Veteran will be applied.  See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461 (1997).  

After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran.  38 C.F.R. § 4.3.

During a September 2020 VA DBQ, the examiner diagnosed the Veteran with GERD.  The examiner noted that the Veteran takes continuous medication for GERD and noted symptoms of reflux and regurgitation.  The examiner did not indicate that the Veteran experienced any substernal or arm or shoulder pain, or any material weight loss.  Additionally, the examiner determined that the Veteran did not have any esophageal stricture.

During the August 2024 Board hearing, the Veteran testified that he experienced heartburn and severe acid reflux and related difficulty sleeping.  He also testified to, at times, regurgitating once per week in an attempt to clear the acid from his throat.  He further reported pain and burning in the throat and chest, but he denied any related pain in the shoulder or jaw.  He testified to experiencing difficulty swallowing while eating.  He testified to, at times, losing 20 pounds, but he noted that he has gained it all back.  He testified to experiencing GERD symptoms daily for up to 2 or 3 hours.  The Veteran is competent to report his symptomology.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  The Board finds this testimony to be credible and relevant to the issue on appeal.

In September 2024, the Veteran submitted additional medical records reflecting that he underwent a VA endoscopy in June 2022 and October 2022.  These endoscopies reflected that the Veteran had esophagitis and an H. Pylori infection.  An April 2023 VA endoscopy reflected a normal esophagogastroduodenoscopy.  

The most persuasive evidence of record related to the Veteran's GERD symptomology is the Veteran's August 2024
 See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  The Board finds this testimony to be credible and relevant to the issue on appeal.

In September 2024, the Veteran submitted additional medical records reflecting that he underwent a VA endoscopy in June 2022 and October 2022.  These endoscopies reflected that the Veteran had esophagitis and an H. Pylori infection.  An April 2023 VA endoscopy reflected a normal esophagogastroduodenoscopy.  

The most persuasive evidence of record related to the Veteran's GERD symptomology is the Veteran's August 2024 hearing testimony.  The Veteran testified that he experienced burning, regurgitation, pain in the throat and chest and, difficulty swallowing food, and vomiting up to once per week because of his GERD.  He additionally testified to experiencing the sensation of feeling like his food was becoming stuck in his throat, noting a frequency of daily symptoms of GERD lasting up to 3 hours.  

In this case, the Veteran's description of symptoms described above more closely resemble persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain productive of considerable impairment of health, and warrant a rating 30 percent disabled.

In the absence of evidence of symptoms of causing material weight loss and hematemesis or melena with moderate anemia, or other symptoms combinations productive of severe impairment of health, a rating in excess of 30 percent disabled is not warranted.  Additionally, under the new criteria, the Veteran has not required dilatation three or more times per year, dilatation using steroids at least one time per year, or esophageal stent placement.  As such, the new criteria are not more favorable in application.

3. Entitlement to service connection for a left elbow strain is granted.

4. Entitlement to service connection for a right elbow strain is granted.

The Veteran seeks entitlement to service connection for left and right elbow disorders.  In the September 2020 rating decision on appeal, the AOJ favorably found that the Veteran has been diagnosed with left and right elbow strain.

During the August 2024 Board hearing, the Veteran testified that his bilateral elbow pain began during service.  He testified that he first noticed elbow pain during his first period of active duty service while performing duties related to his military occupational specialty (MOS) of motor transport operator, including military vehicle maintenance.  He further testified that the pain worsened during his second period of active duty while participating in physical training as part of a quick reaction force that required training in full body armor and carrying items such as his rifle, ammo cans, and sandbags.  Notably, this was in the combat environment involving foot patrols, and enemy attacks.  The heavy equipment he lifted included modifications to military vehicles to counter IEDs and incoming rounds.

The claims file contains a September 2020 VA DBQ in which the examiner diagnosed the Veteran with bilateral elbow strain.  The examiner opined that the diagnosis is less likely than not related to service, stating:

Based on today's exam, the claimant is diagnosed with Bilateral elbow strain.  Symptoms include pain and tingling in elbow after heavy workout, pain gets better after rest.  Review of medical records show Xray of both elbows WNLs However (sic) clinical evidence is sufficient to diagnose the [V]eteran with b/l elbow strain.  Based on exam and medical records review, the elbow condition is less likely as not due to complaints/treatment during service.  (Emphasis added.)

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The Veteran has extensive combat service.  Therefore, the provisions of 38 U.S.C. § 1154(b) are applicable in this case.  If the veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service.  38 U.S.C. § 1154(b); 38 C.F.R.
 and 3) a nexus, or link, between the current disability and the in-service disease or injury.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The Veteran has extensive combat service.  Therefore, the provisions of 38 U.S.C. § 1154(b) are applicable in this case.  If the veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service.  38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d).  In the case of a combat veteran, not only is the combat injury presumed, but so is the disability due to the in-service combat injury.  See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). 

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Here, the VA examiner found sufficient clinical evidence to diagnose left and right elbow strains due to symptoms of pain and tingling in elbow after heavy workouts with the pain getting better after rest.  These are the same exact symptoms the Veteran described as having in service, to include while in combat service.  Given that the same symptoms experienced during combat service led to the current diagnosis of left and right elbow strains, and the lay evidence establishes chronicity of these symptoms since service, the Board finds that the criteria for service connection for left and right elbow strains have been met.  Reeves, 682 F.3d at 999.

 

 

T. MAINELLI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Howell, Chad

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.