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Court Wins

Board Misinterprets Applicable Laws in Denying an Increased Rating and Temporary Total for GERD

Michael Lostritto

March 12, 2019

Updated: May 20, 2024

Court Win - Increased Rating radiculopathy

Note: Effective May 19, 2024, VA now rates GERD under 38 CFR § 4.114, Schedule of Ratings – Digestive System, Diagnostic Code 7206.

Summary of the Case

The Veteran served in the United States Army from January 1996 to July 2003.  Shortly after leaving service, he applied for service-connected compensation for gastroesophageal reflux disease (GERD).  In December of 2003, he was granted a noncompensable rating.  From there, he appealed for a higher rating.  After receiving several denials, he was eventually granted a 10 percent disability rating in 2014.  However, the Veteran continued to appeal to the Board of Veterans’ Appeals for a disability rating in excess of 10 percent.  The Board then granted a 30 percent disability rating, but no higher, for the Veteran’s GERD.

During this appeals process, the Veteran also filed for a temporary total rating based on convalescence due to the surgery he underwent in July of 2008 for his GERD.  In April of 2009, his claim was denied and he perfected his appeal to the Board.  The Board reviewed the Veteran’s claim for a temporary total rating and continued the Regional Office’s denial.

Board Denies Veteran’s Claims for an Increased Rating and Temporary Total for GERD

In June of 2017, the Board issued a decision that denied (1) a disability rating in excess of 30 percent for the Veteran’s service-connected GERD, and (2) a temporary total rating based on the need for convalescence following a July 2008 surgery for GERD.  In its decision, the Board determined that the Veteran did not have any symptoms enumerated in the criteria for a 60 percent disability rating for GERD, including vomiting, under 38 CFR § 4.114 (DC 7346).  Additionally, the Board found that his symptoms were not productive of severe impairment of health.  Further, the Board denied a temporary total rating, holding that the evidence of record showed the Veteran only took three weeks of medical leave from work after surgery and was able to conduct his own post-operative care.  Here, the Board cited to 38 CFR § 4.30(a)(1), stating that a temporary total rating may be assigned when treatment for a service-connected disability results in surgery necessitating at least one month of convalescence.  Although medical records also restricted him to an additional 45 days of light duty, the Board discounted the relevance of this restriction because it did not require bedrest for one month or more.

CCK Argues the Board Misinterpreted the Law, Court Agrees

CCK successfully appealed to the Court of Appeals for Veterans Claims (CAVC) the Board decision that denied an increased rating and temporary total rating for the Veteran’s GERD.

Increased Rating for GERD

In regards to an increased rating for GERD, CCK argued for a reversal of the Board’s finding that the Veteran’s condition did not cause vomiting as there was significant evidence to the contrary.  Furthermore, CCK argued that the Board was supposed to rate the Veteran on his overall impairment of function, but instead simply recited the criteria for a 60 percent disability rating and found that he did not have the listed symptoms.  However, the Veteran did have two of the listed symptoms (i.e. pain and vomiting).  He also had symptoms that were productive of a severe impairment of health such as chronic sleep impairment and breathing difficulties.  CCK asserted that by failing to include these factors, the Board provided an insufficient statement of reasons or bases.

The Court agreed that the Board’s finding pertaining to the Veteran’s vomiting was inaccurate.  More importantly, the Court agreed that the Board misinterpreted the relevant regulatory language in determining whether the Veteran’s symptoms were productive of a severe impairment of health.  Specifically, the Board did not consider any of his unlisted symptom combinations when making its determination.

Temporary Total Rating

In response to the Board’s denial of a temporary total rating, CCK argued that the Board incorrectly interpreted the definition of convalescence.  CCK asserted that the Board should have analyzed the length of time it took for him to return to a healthy state, rather than whether he was on bedrest or able to care for his own post-operative needs.

Once again, the Court agreed with CCK finding that remand was warranted because the Board misinterpreted the law and thereby failed to make the relevant factual findings (i.e. whether the Veteran required at least one month to return to a healthy state following his July 2008 surgery).  Accordingly, the Court returned the Veteran’s case to the Board in order for it to make such determinations.

About the Author

Bio photo of Michael Lostritto

Michael joined CCK in September of 2016 as an Attorney, was named Supervising Attorney in 2021, and now serves as a Managing Attorney. His practice focuses on the representation of disabled veterans before the Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.

See more about Michael