Citation Nr: 0919318 Decision Date: 05/22/09 Archive Date: 05/26/09 DOCKET NO. 07-23 025 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES Entitlement to an increased rating in excess of 30 percent for irritable bowel syndrome (IBS) and gastroesophageal reflux disorder (GERD). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A.M. Ivory, Associate Counsel INTRODUCTION The Veteran had active military service from November 1979 to July 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2005 and January 2006 rating decisions by the Department of Veterans' Affairs (VA) Regional Office (RO) in Togus, Maine and the RO in Augusta, Maine. During the pendency of this appeal the RO issued the January 2009 Decision Review Officer (DRO) decision which granted the Veteran an increased rating of 50 percent for her service- connected migraine headaches, effective May 19, 2004, the date of the Veteran's claim for increase. The Board notes that the 50 percent disability rating is the maximum available rating under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Therefore, since the Veteran was granted the full benefits sought on appeal, the issue of an increased rating for migraine headaches is no longer before the Board. The January 2005 and January 2006 RO rating decisions continued the Veteran's 10 percent disability rating for her service- connected IBS. The January 2006 RO rating decision granted the Veteran service connection and a noncompensable rating for peptic ulcer. In compliance with 38 C.F.R. § 4.114 a May 2007 DRO decision combined the Veteran's service-connected IBS and service-connected peptic ulcer, GERD, and granted her a combined rating of 30 percent, effective September 17, 2004. Inasmuch as a rating higher than 30 percent for the service- connected IBS and GERD is available, and inasmuch as a claimant is presumed to be seeking maximum available benefit for a given disability, the claim for higher ratings, as reflected on the title page, remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes at the Veteran's February 2008 VA examination the examiner stated that her GERD and IBS interfered with her employment. Therefore, the Board refers the issue of total disability rating based on individual unemployability due to a service-connected disability (TDIU) to the RO for further development. FINDING OF FACT The Veteran's service-connected IBS and GERD are manifested by other symptom combinations productive of severe impairment of health. CONCLUSION OF LAW The criteria for the assignment of an increased rating of 60 percent for the service-connected IBS and GERD are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.10, 4.20, 4.114 including Diagnostic Codes 7319, 7346 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008). VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the duties imposed by VCAA and its implementing regulations, and given that the action taken hereinbelow is fully favorable by granting the Veteran the maximum schedular rating available to her, the Board finds that all notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. See 38 C.F.R. §§ 3.102, 4.3 (2008). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The January 2005 and January 2006 RO rating decisions continued the Veteran's 10 percent disability rating for her service- connected IBS. The January 2006 RO rating decision granted the Veteran service connection and a noncompensable rating for peptic ulcer. In May 2007 a DRO decision combined the Veteran's service-connected IBS and service-connected peptic ulcer, GERD, and granted her a combined rating of 30 percent, effective September 17, 2004. The Veteran asserts that her service-connected GERD and IBS are worse then the increased 30 percent disability rating. The Board notes that the Veteran's IBS and GERD cannot be rated separately because 38 C.F.R. § 4.114 states that ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single rating will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevation. Therefore, in this situation the highest scheduler rating the Veteran can get is rated under the criteria for GERD and therefore, the Veteran will not be granted a separate rating. Additionally, the Board notes that to assign two separate ratings under 38 C.F.R. § 4.114 would constitute pyramiding and "the evaluation of the same manifestation under different diagnoses are to be avoided." 38 C.F.R. § 4.14. Also, Esteban v. Brown, citing Brady v. Brown: "38 U.S.C.A. sec. 1155 implicitly contains the concept that 'the rating schedule may not be employed as a vehicle for compensating a claimant twice or more for the same symptomology; such a result would overcompensate the claimant for the actual impairment of his earning capacity' and would constitute pyramiding." Esteban v. Brown, 6 Vet. App. 259, 261 (1994), citing Brady v. Brown, 4 Vet. App. 203 (1993). The Veteran is currently rated under 38 C.F.R. § 4.114, Schedule of Ratings for the Digestive System, Diagnostic Code 7436. A rating of 10 percent is awarded with two or more of the symptoms for the 30 percent evaluation of less severity. A rating of 30 percent may be assigned 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 rating of 60 percent may be awarded for symptoms of pain, vomiting, material weight loss or hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. The Board notes that also applicable under 38 C.F.R. § 4.114 is Diagnostic Code 7319, which provides ratings for irritable colon syndrome (spastic colitis, mucous colitis, etc.). A noncompensable rating is warranted when there is mild irritable colon syndrome, with disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent disability rating is warranted when there is moderate irritable colon syndrome, with frequent episodes of bowel disturbance with abdominal distress. A 30 percent disability rating is severe irritable colon syndrome, with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. The Board notes that the terms "mild," "moderate," "severe," "considerable," and "of lesser severity" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. At the Veteran's July 2005 VA examination it was noted that she had diarrhea for 3 days every 3 to 4 months and the last time there was blood in her stool. It was also noted that she lost work due to her IBS. In July 2007 the Veteran had a VA examination where she reported vomiting once every few weeks; however, she didn't have weight loss or hematesis. There were occasional episodes of abdominal distress. She had frequent episodes of bowel disturbance and alternating diarrhea and constipation. She had blood intermittent with her periods of diarrhea, a few times a month for a couple of days. She also had lower abdominal pain, reflux, and vomited once every 3 months. She had no dysphagia, pain, hematemesis, or anemia. At the Veteran's February 2008 VA examination it was noted that her GERD and IBS were progressively worse. It was noted that the Veteran did not have any vomiting, esophageal, hematemesis, melena, or anemia. However, she did have nausea several times a week after meals and frequent dysphagia; it was less then daily but occurred more than once weekly. She also had heartburn/pyrosis and regurgitation several times daily and esophageal dilation once in the past 12 months. She also had weekly constipation and persistent diarrhea that occurred 4 to 6 times daily. In addition, she had sharp intestinal pain in the epigastric area that occurred several times a day for 1 to 2 hours and was severe. The VA examiner noted that the Veteran lost 11 weeks of work in the past year due to her IBS and GERD. She also had significant loss of stamina, weakness, and fatigue. Her activities of daily living were affected mildly in the areas of bathing, dressing, toileting, and grooming; moderately in the areas of chores, shopping, and feeding; and severely in the areas of exercise, sports, recreation, and travel. After a careful review of the Veteran's VA treatment records, VA examinations, and private treatment reports the Board finds that the Veteran's service-connected IBS and GERD warrants an increased rating of 60 percent under 38 C.F.R. § 4.114, Diagnostic Code 7436. The February 2008 VA examiner specifically stated that she had significant loss of stamina, weakness, and fatigue due to her service-connected GERD and IBS. In addition she had daily diarrhea, heartburn, and regurgitation and weekly constipation. She also had severe intestinal pain that occurred several times a day. While she does not have material weight loss, hematemesis or melena with moderate anemia, the Board finds that she still meets the criteria for 60 percent because the medical evidence demonstrates that she has symptom combinations productive of severe impairment of health. For all the foregoing reasons, the Board finds the totality of the evidence warrants an increased rating of 60 percent for the service-connected IBS and GERD. Because the Veteran is currently in receipt of the maximum schedular rating for IBS and GERD, the Board has considered an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) (2008). Under 38 C.F.R. § 3.321(b)(1), an extraschedular evaluation is warranted only if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The February 2008 VA examiner stated over the past year the Veteran lost 11 weeks from work due to her service-connected disability; however, the Board finds that this was taken into consideration was granting her the increased 60 percent disability rating and there is no evidence that shows marked interference with her employment beyond that contemplated under her assigned schedular rating. In addition, the Board notes that the record contains no indication that the Veteran has been frequently hospitalized for treatment of her service- connected IBS and GERD. In summary, although the record shows that the Veteran's IBS and GERD results in occasional interference with work her maximum disability rating of 60 percent is in recognition that her industrial capabilities are severely impaired. After reviewing the record, the Board is unable to identify an exceptional or unusual factor which would render impractical the application of the regular schedular standards. Thus, referral for consideration of extraschedular rating is not warranted. Given these facts, the Board finds that an increased rating of 60 percent, but not higher, for the service-connected IBS and GERD is warranted. ORDER An increased rating of 60 percent for the service-connected IBS and GERD, subject to the regulations controlling disbursement of VA monetary benefits, is granted. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs