Citation Nr: 1801629 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-09 311 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a rating in excess of 10 percent for service-connected irritable bowel syndrome (IBS) and gastroesophageal reflux disease (GERD). REPRESENTATION Veteran represented by: Ryan Farrell, Agent ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1987 to November 2007. This case comes before the Board of Veterans' Appeals (the Board) on appeal from August and December 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board notes that the Veteran already has a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). FINDINGS OF FACT 1. Throughout the appeal, the Veteran's PTSD has been manifested by symptoms such as anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintain effective work and social relationships; difficulty in adapting to stressful circumstances; and suicidal ideation without intent or plan; causing occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. At no point during the appeal has he displayed total social and occupational impairment. 2. Throughout the appeal, the Veteran's IBS with GERD has been productive of diarrhea multiple times per day and abdominal distress, as well as pyrosis, nausea, and vomiting; but with no signs of malnutrition, health only fair during remissions, general debility, or serious complication such as liver abscess. He does not have symptom combinations productive of severe impairment of health. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 70 percent for PTSD have not been met or approximated at any time during the appeal period. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411 (2017). 2. The criteria for a rating of 30 percent, but no higher, for IBS with GERD have been met throughout the entire appeal period. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.14, 4.20, 4.21, 4.27, 4.113, 4.114, Diagnostic Code 7399-7319 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Ratings Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2017). 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 their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). If two 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 (2017). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1 (2017). Increased Rating for Inflammatory Bowel Disease with Gastroesophageal Reflux Disease The Veteran essentially contends that his IBS with GERD is more disabling than contemplated by his 10 percent disability rating. In general, all disabilities, including those arising from a single disease entity, are rated separately; however, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2017). The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he or she should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). The Board notes that there are 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, as indicated in the instruction under the title "Diseases of the Digestive System," 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 and 4.113 (2017). 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 which 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 (2017). The Veteran's IBS with GERD is evaluated under 38 C.F.R. § 4.114, Diagnostic Code 7399-7319. See 38 C.F.R. § 4.27 (requiring that unlisted disabilities requiring rated by analogy will be coded as the first two numbers of the most closely related body part and "99;" the second diagnostic code is the residual condition on the basis for which the rating is determined); see also 38 C.F.R. § 4.20. This is the most appropriate Code as IBS is not a listed condition, and is most appropriately rated by analogy to DC 7319. 38 C.F.R. §§ 4.20, 4.21 (2017). The Veteran is currently assigned a 10 percent evaluation under the criteria of Diagnostic Code 7319, pertaining to irritable colon syndrome. A 30 percent rating requires that symptoms are severe; with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. §§ 4.114 (2017). Alternatively, for a rating under ulcerative colitis, a 30 percent evaluation requires moderately severe ulcerative colitis with frequent exacerbations. A 60 percent evaluation is warranted for severe ulcerative colitis with numerous attacks a year and malnutrition and health only fair during remissions. A 100 percent evaluation is warranted for pronounced ulcerative colitis resulting in marked malnutrition, anemia, and general debility or with serious complication as liver abscess. 38 C.F.R. § 4.114, Diagnostic Code 7323 (2017). In the instant case, the Veteran submitted a claim for an increased rating on April 28, 2011. In March 2012, the Veteran was afforded an examination for his GERD. He displayed symptoms of reflux but no other symptoms. In August 2012, the Veteran was afforded a VA examination for his IBS. He stated he had loose bowel movements daily. The examiner noted he did have frequent episodes of bowel disturbance with abdominal distress or exacerbations or attacks of the intestinal condition, with hyperactive peristalsis, urgency, and lower abdominal pain relieved with a bowel movement. He did not have weight loss. The Veteran also did not have malnutrition, serious complications, or other general health effects attributional to the intestinal condition. The Veteran had not had surgical treatment. The Veteran did not have any neoplasms or metastases related to his diagnosis. The examiner noted his condition impacted his ability to work because he had to frequently use the bathroom. In February 2017, the Veteran underwent a VA ordered examination. The examiner noted in regards to his IBS that the Veteran reported his condition had gotten worse since his last examination in 2012 but that he had not seen a gastroenterologist since 2007. He stated that certain foods irritated his stomach and that he could not remember his last firm bowel movement. He stated he had diarrhea 5-6 times per day, which caused dehydration. The examiner noted continuous medication was not required and the Veteran had not had surgical treatment. He also noted nausea symptoms. The examiner noted the Veteran did not have episodes of bowel disturbance with abdominal distress or exacerbations or attacks of the intestinal condition. The Veteran also did not have malnutrition, serious complications or other general health effects attributed to the intestinal condition. He had a current weight of 152 pounds versus 185-190 for the 2 year period preceding the onset of the disease. The Veteran did not have any neoplasms or metastases related to his diagnosis. The examiner noted his condition did not impact his ability to work. The Veteran was also afforded a GERD examination. The Veteran reported pyrosis; recurrent nausea; recurrent vomiting, 4 times or more per year but less than one time per day; and transient hematemesis. The examiner noted his condition did not impact his ability to work. After reviewing the evidence of record for the time period under consideration, the Board finds that the Veteran's disability picture, most closely approximates the criteria for a 30 percent evaluation, but no more, under Diagnostic Code 7319. The Board concludes that, during this time period, the Veteran's IBDS with GERD and associated symptoms were, at most, severe with diarrhea and constant abdominal distress. As noted above, this rating takes into account the Veteran's frequent, daily diarrhea multiple times per day and is the highest rating available under DC 7319. The Board has considered whether it is more appropriate to rate the veteran's disability symptoms under Diagnostic Code 7323. The Veteran is now already evaluated as 30 percent disabled under Diagnostic Code 7319, and, as noted, ratings under Diagnostic Codes 7301 to 7329 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. 38 C.F.R. § 4.114 (2017). Thus, assigning separate disability ratings under these codes is precluded. The evidence of record does not approximate the criteria for a higher evaluation under any applicable Diagnostic Code including 7323 for ulcerative colitis. Specifically, as to the criteria for a 60 percent or higher evaluation under Diagnostic Code 7323, there is no evidence of malnutrition (marked or otherwise), health only fair during remissions, anemia, general debility, or serious complication as liver abscess reported from any VA examinations, private treatment records, or VA medical center (VAMC) visits. Rather, these symptoms and manifestations were ruled out by health care professionals. The Board has also considered the Veteran's service-connected gastrointestinal disability under all other potentially applicable diagnostic codes. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, Diagnostic Codes 7203 to 7205 are not for application because the Veteran has never been diagnosed with stricture, spasm, or diverticulum of the esophagus during the appeal period. Likewise, the Veteran has not been diagnosed with a duodenal, marginal, inguinal, ventral, or femoral ulcer; therefore, Diagnostic Codes 7204 to 7306 and 7338 to 7340 are not for application. Similarly, even if the Board were to assign the rating instead based on the Veteran's GERD symptoms, by analogy to the rating code for a hiatal hernia, the Veteran's disability does not warrant a rating in excess of 30 percent, nor do his symptoms rise to the level that would require elevation to the next higher rating. See Diagnostic Code 7346 (2017). While the Veteran displays pyrosis, recurrent nausea, recurrent vomiting, 4 times or more per year but less than one time per day, and transient hematemesis (vomiting of blood), he does not display pain or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Based on these facts, a rating under this code would not exceed the currently assigned 30 percent rating. The symptoms are not of such severity so as to warrant elevation to the higher rating pursuant to 38 C.F.R. § 4.114. The Board has not overlooked the Veteran's statements with regard to the severity of his disability. The Veteran is competent to report on factual matters of which she had firsthand knowledge, e.g., experiencing diarrhea, nausea, vomiting, and pyrosis, and the Board finds that the Veteran's reports have been credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The lay evidence in this case was provided during the Veteran's VA examinations. Furthermore, the VA examiner who conducted the recent VA examination considered the Veteran's reported symptoms before concluding that the disability that the Veteran did not have malnutrition or severe impairment of health, the objective findings necessary for a 60 percent rating. Having considered the Veteran's reports along with findings from the Veteran's VA examinations, the Board notes, with respect to the Rating Schedule, where the criteria set forth therein require medical expertise which the Veteran has not been shown to have, the objective medical findings and opinions suggesting no more than moderate severity provided by the VA examination report have been accorded greater probative weight than the Veteran's assertion that a higher rating is warranted. In reaching this determination, the Board has considered whether, under Hart a higher rating might be warranted for any period of time during the pendency of this appeal. See Hart, supra. But there is no evidence that the Veteran's IBS with GERD warranted an evaluation in excess of the 30 percent evaluation at any time during the appeal period as there was a never a finding that the Veteran suffered from malnutrition and health that was only fair during remissions. Additionally, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim for an increased evaluation, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating for PTSD The Veteran essentially contends that his PTSD is more disabling than contemplated by his 70 percent disability rating. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. See 38 C.F.R. § 4.126 (2017). The pertinent provisions of 38 C.F.R. § 4.130 relating to rating psychiatric disabilities read as follows: A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). A 100 percent evaluation is warranted where there is evidence of total occupational and social impairment due to gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, "[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous." Id. The Court went on to state that the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. The Federal Circuit has indicated that when addressing the issue of a veteran's entitlement to a disability rating under 38 C.F.R. § 4.130, an explicit finding as to how most of the enumerated areas are affected may be important, if not absolutely required. See Vazquez-Claudio v. Shinseki, 2012-7114 (Fed. Cir. Apr. 8, 2017). The Veteran submitted a claim for an increased rating on April 28, 2011. December 2011 VA medical center (VAMC) treatment records reveal that the Veteran received a psychiatric consultation. He stated he occasionally had nightmares of combat and flashbacks. He was not on medication. He stated he turned to alcohol due to his PTSD. He stated he was intermittently depressed. He denied decreased energy, appetite problems, or suicidal or homicidal ideation. He denied elation or rapid speech or thoughts. He did have impulsive money spending. He denied delusions, but had some visual hallucinations after waking up from nightmares in the past, although he currently denied having them. He was divorced twice. The examiner noted he was agitated and not cooperative; speech was normal. Mood was ok, and affect was reactive and irritated. He answered questions appropriately but then became distractible. He denied suicidal or homicidal ideation. He denied current visual or auditory hallucinations. He was orientated and insight and judgment were fair. He did endorse many traits of PTSD, including nightmares, questionable flashbacks, and guarded behavior. In March 2012, the Veteran was afforded a VA examination. The examiner noted the Veteran experienced symptoms of hypervigilance, emotional numbing, avoidance and re-experiencing attributable to his PTSD diagnosis. Overall the examiner noted the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran was not currently undergoing any psychiatric treatment. The Veteran had symptoms of depressed mood; anxiety; suspiciousness; panic attacks more than once a week; mild memory loss; flattened affect; disturbances in motivation and mood; difficulty in establishing and maintain effective work and social relationships; and suicidal ideation. The examiner noted he demonstrated good grooming and hygiene and made appropriate eye contact. He denied any current suicidal or homicidal ideation, intent or plan. He denied any hallucinations or delusions and had independent management of his activities of daily living. The examiner wrote that, due to the Veteran's medical issues and PTSD, he cannot work. In February 2017, the Veteran underwent a VA examination. The examiner noted symptoms attributable to PTSD included re-experiencing trauma; avoidance reactions; hyperarousal; irritability; anhedonia; depressed mood; suspiciousness; and anxiety. The examiner noted symptoms of depressed mood; anxiety; suspiciousness ; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintain effective work and social relationships; and difficulty in adapting to stressful circumstances. The examiner noted the Veteran was dressed casually and his hygiene was adequate. He was tense and hostile and stated he was angry and irritable. His affect was anxious and angry. His thought process was goal directed. He denied psychotic symptoms. His speech was within normal limits; his concertation wad good, and he was attentive. He was alert and oriented but endorsed memory problems. His insight and judgment were fair. Overall the examiner noted occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Throughout the whole appeal period, symptoms which the Veteran has reported or exhibited include depressed mood, anxiety, suspiciousness, panic attacks more than once a week; mild memory loss; flattened affect; disturbances in motivation and mood; difficulty in establishing and maintain effective work and social relationships; and suicidal ideation which are indicative of and accounted for in the assignment of a 70 percent rating. While the Veteran reported suicidal ideation, he did not have a plan, and while he admitted to past hallucinations, he denied them on all other occasions; thus the Board finds they are not constant or persistent to the point where they cause him total impairment. The Board notes the March 2012 VA examination report which includes the annotation that the Veteran cannot work due to his medical issues and PTSD. Significantly, in the same examination report, the examiner determined that the level of occupational and social impairment due to all mental diagnoses was occupational and social impairment with reduced reliability and productivity. The Board notes that the rest of the medical evidence does not indicate that the Veteran is unemployable as a result solely of his PTSD. The Board finds the evidence of record more nearly approximates the 70 percent rating and that the Veteran is not totally occupationally impaired solely due to the PTSD. The Veteran demonstrated that he did not have total occupational or social impairment. In fact, the Veteran has been shown to have normal communication, his insight and judgment has consistently been judged as fair, and his thought process consistently described as oriented and linear by his examiners. He has also demonstrated the ability to perform activities of daily living, grooming, and self-care. The Veteran also displayed orientation as to time and place, and an intact long term memory. Thus, in the absence of total social impairment due to his symptoms, a 100 percent rating under the General Rating Formula cannot be assigned. Thus the Board finds that no more than a 70 percent rating is warranted during this part of the appeal period. See Hart, supra. The preponderance of the evidence is against the Veteran's claim for an increased evaluation, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a rating of 30 percent, but no higher, for IBS with GERD, is granted subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 70 percent for PTSD is denied. ____________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs