Citation Nr: 1800496	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  14-16 175	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a rating in excess of 30 percent for gastroesophageal reflux disease (GERD) and hiatal hernia, with irritable bowel syndrome (IBS), status post cholecystectomy.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

S. S. Mahoney, Associate Counsel 
INTRODUCTION

The Veteran served on active duty in the United States Air Force from July 2000 to August 2007. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In July 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge.  A transcript of that proceeding is of record.


FINDING OF FACT

For the entire appeal period, the Veteran's GERD and hiatal hernia, with IBS, status post cholecystectomy has been manifested by diarrhea, constipation, abdominal distress, pain, vomiting, and other combined symptoms productive of severe impairment of health.


CONCLUSION OF LAW

The criteria for a maximum 60 percent rating for GERD and hiatal hernia, with IBS, status post cholecystectomy are met for the entire appeal period.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Codes (DCs) 7319-7346 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations.  38 U.S.C. § 1155.  The disability must be viewed in relation to its history.  38 C.F.R. § 4.1.  If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; 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 favor of the claimant.  38 C.F.R. § 4.3.

Pursuant to 38 C.F.R. § 4.113, certain diseases of the digestive system, "particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia, and disturbances in nutrition."  Consequently, certain coexisting diseases in this area "do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in 38 C.F.R. § 4.14."  Id.

Ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other.  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.  38 C.F.R. § 4.114. 

The Veteran's GERD and hiatal hernia, with IBS, status post cholecystectomy is currently rated at 30 percent disability under DCs 7319-7346.  DC 7319 provides a maximum 30 percent rating for severe irritable colon syndrome with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress.  38 C.F.R. § 4.114.

Pursuant to DC 7346, a 30 percent disability rating is warranted for hiatal hernia 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.  38 C.F.R. § 4.114, DC 7346.  A maximum 60 percent rating is assigned for hiatal hernia with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.  Id.
Inasmuch as the Veteran is already in receipt of the maximum schedular rating available under DC 7319, this diagnostic code does not provide a basis for the benefit sought on appeal.  Therefore, the Board must consider whether the Veteran warrants a rating in excess of 30 percent under DC 7346.

By way of background, an April 2008 rating decision awarded service connection for GERD and hiatal hernia, with IBS, status post cholecystectomy and assigned a 10 percent rating pursuant to DC 7346, effective August 5, 2007.  Thereafter, a February 2010 rating decision increased the rating to 30 percent pursuant to DCs 7319-7346, effective March 12, 2009, the date of his claim for an increased rating.  A February 2014 rating decision assigned a temporary 100 percent rating based on convalescence, effective March 12, 2013, and then back to 30 percent from May 1, 2013.  See 38 C.F.R. § 4.30.  The current appeal period before the Board begins on March 12, 2008, one year prior to the date VA received the Veteran's claim for an increased rating.  Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010).

Upon review of the totality of the record, the Board finds that a 60 percent rating is warranted for GERD and hiatal hernia, with IBS, status post cholecystectomy, effective on the date of his increased rating claim, or March 12, 2009.  In this regard, there is no pertinent evidence demonstrating an ascertainable increase in disability to allow for assignment of a 60 percent rating within the one-year look-back period.  Id.

The Veteran has reported combined symptoms productive of severe health impairment of health.  He has consistently reported severe vomiting and pain throughout the appeal period.  A May 2010 VA treatment record reflects that he had LA Grade C reflux esophagitis.  On his September 2010 Notice of Disagreement, he competently and credibly reported that he has nocturnal vomiting and often wakes up choking on acid and chunks of food that had risen back up in his throat while sleeping.  In January 2012, an esophageal swallow testing revealed reflux with poor emptying of the esophageal body, as well as abnormal esophageal scintigraphy, showing severe inherent nonspecific motor disorder.  In a February 2012 VA treatment record, the Veteran reported that he has to sleep sitting upright or else he will gag on refluxed bile in his throat, and in October 2012, he reported food regurgitation several hours after eating and regurgitation that wakes him up from sleep, in which food and liquid exit his nose.  The physician noted that such symptoms have persisted despite a cholecystectomy, use of acid suppressors, and anti-acids.  Additionally, he noted that manometry testing results revealed an absence of lower esophageal sphincter pressure along with a hiatal hernia consistent with severe GERD and that the Veteran was high risk for aspiration due to persistent regurgitation, necessitating anti-reflux surgery.  In February 2013, he complained of severe reflux symptoms, especially at night, regurgitating food at night and out of his nose even when sleeping upright.  The treating physician noted that his symptoms continued despite maximal medical therapy.  In March 2013, the Veteran underwent a surgical procedure, Laparoscopic Nissen fundoplication, to alleviate these symptoms.  

In May 2014, he endorsed excruciating abdominal pain due to IBS with frequent constipation or diarrhea, hemorrhoids, heartburn, reflux, vomiting, severe chest and throat pain despite undergoing surgery and taking prescription medication.  A July 2017 endoscopy revealed that the Veteran had a small hiatal hernia, LA Grade A reflux and erosive esophagitis, and non-erosive gastritis.  The Veteran testified that he still gets overnight reflux, but that his ability to burp or vomit is severely limited now after the surgery and that he throws up blood from having to strain and force vomit out.  See Board Hearing Transcript at 6.  He also stated that he has daily abdominal pain from bloating and pressure, a 6 out of 10 in severity, because of his IBS, and that he has either extreme constipation or extreme diarrhea.  Id at 8.  Additionally, he testified that he gets recurrent sinus infections from vomiting out of his nose and that he has to eventually undergo the same anti-reflux surgery again.

Based on the above-cited evidences and the Veteran's competent and credible reports as to the intensity, frequency, and nature of his gastrointestinal symptoms throughout the course of the appeal, a 60 percent rating for GERD and hiatal hernia, with IBS, status post cholecystectomy is warranted from March 12, 2009, exclusive of the period of assignment of a temporary total rating, based on symptom combinations productive of severe impairment of health. 

A 60 percent rating is the maximum schedular rating that can be assigned under DC 7346.  The Board has considered whether a higher rating is warranted under alternate diagnostic codes relating to disabilities of the digestive system, again noting that DCs 7301-7329, 7331, 7342, and 7345-7348 cannot be combined.  See 38 C.F.R. § 4.114.  However, the other DCs that provide for a higher, 100 percent rating contemplate disabilities and symptomatology not demonstrated in the competent evidence of record. 

ORDER

From March 12, 2009, a maximum 60 percent rating for GERD and hiatal hernia, with IBS, status post cholecystectomy is granted, exclusive of the period of assignment of a temporary total rating.



____________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs