Back to BVA DecisionsDENIEDSpecial Benefit NO SPECIAL BENEFIT Docket No. 230501-343472
HIATAL HERNIA
L. CHU · 2026 · Case ID: A26040592
Summary
The Veteran, who served from July 2011 to December 2014, appeals the denial of an increased rating for his service-connected gastroesophageal reflux disease (GERD), currently rated at 10 percent. The appeal originates from a September 2022 supplemental claim, with subsequent higher-level review in March 2023. The Board reviewed evidence from September 2021 through the November 2022 AOJ decision. The Veteran submitted a December 2021 private evaluation, citing symptoms like daily heartburn, nighttime choking from regurgitation, and chest pain, which the provider linked to a 60 percent rating based on the Veteran's reports. However, the Board found this opinion lacked detailed rationale. A November 2022 VA examination noted the Veteran experienced chest burn and pain four to five times per week, slept propped up due to reflux, and took omeprazole daily. The examiner opined the GERD did not impact work ability. The Board found the evidence did not meet the criteria for a 30 percent rating, which requires persistently recurrent epigastric distress, dysphagia, pyrosis, regurgitation, and substernal pain, all causing considerable impairment of health. The Veteran consistently denied dysphagia, and the evidence did not demonstrate considerable impairment. Therefore, the Board denied the appeal for an increased rating.
Rationale
Veteran's GERD symptoms did not meet criteria for 30% rating.; No evidence of persistently recurrent epigastric distress, dysphagia, pyrosis, regurgitation, and substernal pain.; No evidence of considerable impairment of health.
Full Decision Text
Citation Nr: A26040592 Decision Date: 04/30/26 Archive Date: 04/30/26 DOCKET NO. 230501-343472 DATE: April 30, 2026 ORDER Entitlement to a rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is denied. FINDING OF FACT The Veteran's GERD is not shown to have been manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for GERD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.114, Diagnostic Code (Code) 7399-7346. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from July 2011 to December 2014. This matter is before the Board on appeal from a November 2022 Department of Veterans Affairs (VA) rating decision, which was subject to higher level review in a March 2023 rating decision. In the May 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the November 2022 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. In January 2025, the Board denied a rating in excess of 10 percent for the Veteran's GERD. In a September 2025 Order, the United States Court of Appeals for Veterans Claims (Court) granted the parties' Joint Motion for Remand (JMR), which vacated the Board's January 2025 denial of a rating in excess of 10 percent for GERD, and remanded the matter for further adjudication consistent with the JMPR. The appeal has now returned to the Board for review. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. ? Entitlement to a rating in excess of 10 percent for GERD is denied. The Veteran contends he is entitled to a higher rating for his service-connected GERD, which is currently rated at 10 percent disabling effective from June 20, 2021. This appeal originates from a September 2022 supplemental claim, which was adjudicated in the November 2022 rating decision. After a December 2022 request for higher level review, the AOJ issued a March 2023 Higher Level Review rating decision. The Board will therefore consider evidence from the date the Veteran filed his claim (September 2022) to the date of the AOJ's decision (November 2022), with a one-year lookback period (to September 2021). 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979 (2010). The Board must consider whether an increase in disability occurred at any time from September 2021. Disability evaluations are determined by the application of the facts presented to the 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. § 4.1. Further, the basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the an increase in disability occurred at any time from September 2021. Disability evaluations are determined by the application of the facts presented to the 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. § 4.1. Further, the basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see also Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 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. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. (1999); Hart v. Mansfield, 21 Vet. App. (2007). The Veteran's GERD is rated under 38 C.F.R. § 4.114, Code 7399-7346, hiatal hernia. Hyphenated diagnostic codes, like the one here, are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Under Code 7346, a 10 percent rating is warranted where two or more of the symptoms for the 30 percent evaluation of less severity are present. 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, Code 7436. The Board is obligated to discount the beneficial effects of medications taken for a disability and evaluate the baseline severity of the disability. See Ingram v. Collins, No. 23-1798, Vet. App. 19 (2025) (affirming Jones v. Shinseki, 26 Vet. App. 56, 62-63 (2012), noting the Board may not deny entitlement to a higher rating based on relief provided by medication when those effects are not specifically contemplated by the rating criteria); see also Jackson v. McDonough, 37 Vet. App. 87, 92 (2023) (noting VA may not rely on factors outside the rating criteria, including the use of medication, unless the rating criteria contemplate the use of medication.) Moreover, the Veteran's disability may be evaluated as more severe if they are untreated by medication, or if the beneficial effects of medication are discounted so that he is evaluated on his baseline without those beneficial effects. See Ingram, supra. During the pendency of the appeal, the criteria for rating dysfunctions of the digestive system were amended effective May 19, 2024. Because the rating criteria changed during the pendency of the appeal, the Board would ordinarily consider the rating criteria that existed prior to May 19, 2024, and that which existed after, applying whichever is more favorable to the Veteran. However, because outside the rating criteria, including the use of medication, unless the rating criteria contemplate the use of medication.) Moreover, the Veteran's disability may be evaluated as more severe if they are untreated by medication, or if the beneficial effects of medication are discounted so that he is evaluated on his baseline without those beneficial effects. See Ingram, supra. During the pendency of the appeal, the criteria for rating dysfunctions of the digestive system were amended effective May 19, 2024. Because the rating criteria changed during the pendency of the appeal, the Board would ordinarily consider the rating criteria that existed prior to May 19, 2024, and that which existed after, applying whichever is more favorable to the Veteran. However, because the period on appeal ends before the amendment took effect, the Board may not retroactively apply the post-May 19, 2024 rating criteria. As such, only the old rating criteria will be considered. Turning to the evidence, the Board notes that on November 2021 VA follow-up treatment visit for multiple medical problems, the Veteran denied any gastrointestinal issue. On a review of systems, he denied any dysphagia, indigestion, change in bowel movements, melena, or abdominal pain. His abdomen was not distended. On June 2022 VA follow-up treatment visit for multiple medical problems, the Veteran denied any gastrointestinal issue. His only complaint was that he was experiencing some symptoms of reflux, but he denied any dysphagia. He recognized that certain foods or eating late in the day/evening caused the reflux to occur. He denied any change in his bowel movements, any melena, nausea, or vomiting. On a review of systems, he denied any dysphagia, indigestion, or abdominal pain. His abdomen was soft, depressible, and nontender. In September 2022, the Veteran submitted a December 2021 private evaluation regarding his GERD. The provider cited the Veteran's reports of symptoms including heartburn with acid reflux, regurgitation of stomach contents into his throat, and nighttime choking due to regurgitation at least once per day, which he stated were worse when he felt anxious or stressed. The provider noted the Veteran's report that he must use over-the-counter Tums and Pepto Bismol two to three times per week to control his heartburn, in addition to avoiding certain foods, eating large meals, or eating late in the day or at night, all of which worsened his symptoms. The provider noted the Veteran's report that he had chest pain when his GERD flared up. The provider noted the Veteran's report that he must sleep with multiple pillows propping up his head, and even then, he could not sleep more than five hours in a row due to being awakened by his GERD symptoms. The provider noted the Veteran's report that his lack of sleep caused daytime fatigue, mood changes, low libido, depressed mood, and self-neglect in personal care. The provider noted the Veteran's report that he had noticed weight gain. Based on the Veteran's reported symptoms in his lay statement, but with no further explanation of rationale, the private provider opined that the Veteran's GERD symptomatology was severe and most closely aligned with a 60 percent rating. On November 2022 VA esophageal conditions examination, the Veteran reported that his condition had worsened since that summer. He reported that every time he ate, he had "chest burn" and pain with any food. He reported that at night, he would have reflux and slept in a recliner to keep it from coming up. He reported that since July 2022, he had ongoing chest pain reflux four to five times per week. His treatment plan included taking omeprazole continuously. His signs and symptoms due to GERD were cited as pyrosis, reflux, regurgitation, and substernal pain. He did not have an esophageal stricture, spasm of the esophagus, or an acquired diverticulum of the esophagus. The examiner opined that the GERD did not impact on the Veteran's ability to work. Additional treatment records show symptoms that are largely similar to those reflected on the VA examination described above. The Veteran also submitted lay statements describing the severity of his symptoms. The reports of the VA examination, treatment records, and lay statements, overall, do not show that the Veteran's GERD manifestations have met (or approximated) the relevant criteria for a 30 percent rating. The findings described above do not meet or approximate the criteria for the next higher, 30 percent, rating. Notably, the criteria for ratings under Code 7346 are written in the conjunctive, meaning that every criterion listed must be met to warrant The examiner opined that the GERD did not impact on the Veteran's ability to work. Additional treatment records show symptoms that are largely similar to those reflected on the VA examination described above. The Veteran also submitted lay statements describing the severity of his symptoms. The reports of the VA examination, treatment records, and lay statements, overall, do not show that the Veteran's GERD manifestations have met (or approximated) the relevant criteria for a 30 percent rating. The findings described above do not meet or approximate the criteria for the next higher, 30 percent, rating. Notably, the criteria for ratings under Code 7346 are written in the conjunctive, meaning that every criterion listed must be met to warrant a 30 percent rating. Specifically, to warrant a 30 percent rating, the Veteran's GERD must be shown to cause persistently recurrent epigastric distress (abdominal pain) and dysphagia (difficulty swallowing) and pyrosis (heartburn) and regurgitation (the casting up of incompletely digested food) and substernal or arm or shoulder pain, all of which must be productive of considerable impairment of health. The definitions cited in parentheses come from the Merriam-Webster online dictionary. The Veteran is not shown to have experienced dysphagia at any time during the appeal period; indeed, he has consistently and specifically denied having dysphagia at any time. There is also no evidence that the Veteran's GERD symptoms have resulted in considerable impairment of his health, to warrant a 30 percent rating. Consequently, a rating higher than 10 percent for GERD is not warranted. The Board notes the lay statements submitted by the Veteran in support of this claim. They describe the types of problems that result from GERD and the symptoms therefrom. The level of functioning impairment he described is encompassed by the criteria for the 10 percent rating assigned; thus, even the lay statements do not support that an increased rating is warranted at any time. Considering the foregoing, the Board finds that the evidence weighs persuasively against this claim. Therefore, the appeal in the matter must be denied. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechner, 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.