Citation Nr: 18151462 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 17-46 597 DATE: November 19, 2018 ORDER Entitlement to an evaluation in excess of 30 percent for irritable bowel syndrome (IBS), gastric ulcer, hiatal hernia and gastroesophageal reflux disease (GERD) is denied. Entitlement to a temporary total rating under the provisions of 38 C.F.R. § 4.29, based on hospitalization over 21 days for hysterectomy is dismissed. REMANDED Entitlement to service connection for migraine headaches is remanded. FINDINGS OF FACT 1. The Veteran’s service-connected IBS, gastric ulcer, hiatal hernia, and GERD are manifested by abdominal pain, nausea, vomiting, and reflux. 2. The Veteran’s service-connected hysterectomy is rated 100 percent for the three-month period following the date of hospitalization. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating increase in excess of 30 percent for IBS, gastric ulcer, hiatal hernia, and GERD have not been established. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.113, 4.114, Diagnostic Codes 7319 (IBS), 7304 (gastric ulcer), 7346 (hiatal hernia/GERD). 2. The Veteran’s claim for a temporary total rating due to hospitalization for hysterectomy has been rendered moot by the award of a total disability rating for three months from the date of the Veteran’s hospitalization; there is no question of fact or law remaining for appellate consideration in the matter, and the Board has no further jurisdiction to consider an appeal in the matter. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Diagnostic codes (DCs) in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102. Separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); Esteban v. Brown, 6 Vet. App. 259, 261 62 (1994). However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. GERD The schedule of ratings for a disability pertaining to the digestive system is applicable to the criteria set forth in 38 C.F.R. § 4.114. Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive, shall not be combined with each other. Rather, a single evaluation will be assigned under the DC which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. Id. As explained further in 38 C.F.R. § 4.113, certain coexisting abdominal diseases do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding. See also 38 C.F.R. § 4.14. The Veteran’s IBS, gastric ulcer, hiatal hernia, and GERD disability is rated as 30 percent disabling under Diagnostic Codes 7304-7319. Irritable Bowel Syndrome (IBS) is rated by analogy to irritable colon syndrome under Diagnostic Code 7319. Hyphenated diagnostic codes are used when a rating for a particular disability under one diagnostic code is based upon rating of the residuals of that disability under another diagnostic code. 38 C.F.R. § 4.27. In this particular case, the first set of four digits, 7304, is the diagnostic code for gastric ulcers; whereas the second set of four digits after the hyphen, 7319, is the diagnostic code used to rate IBS. Under Diagnostic Code 7304, a 40 percent evaluation is warranted for moderately severe ulcer, less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. A schedular maximum 60 percent is warranted for severe ulcer, pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health. Under Diagnostic Code 7319, a 30 percent rating is warranted for severe disability, with diarrhea or alternating diarrhea and constipation, with more or less constant abdominal distress. Id. Under Diagnostic Code 7346, 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 maximum 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. The criteria under Diagnostic Code 7346 are conjunctive, not disjunctive; and thus, all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991) (holding that use of the conjunctive and in a statutory provision means that all of the conditions listed in the provision must be met). Furthermore, material weight loss is not defined in DC 7346, but substantial weight loss is defined, under 38 C.F.R. § 4.112, as a loss of greater than 20 percent of the individual’s baseline weight, sustained for three months or longer, and minor weight loss is defined as a weight loss of 10 to 20 percent of the individual’s baseline weight, sustained for three months or longer. Baseline weight means the average weight for the two-year-period preceding the onset of the disease. 38 C.F.R. § 4.114, DC 7346. The Veteran asserts that her service-connected IBS, gastric ulcer, hiatal hernia, and GERD are worse than the currently assigned 30 percent disability rating. In statements dated in March and April 2017, the Veteran reported nausea, vomiting, stomach pain, bloating, heartburn, alternating constipation and diarrhea multiple times per week, impacting her abilities to work. In a May 2016 stomach examination, the examiner noted a diagnosis of IBS. The Veteran complained of nausea, vomiting, and diarrhea during the day. The Veteran reported periodic abdominal pain and recurrent nausea with 4 or more episodes a year. The examiner noted no evidence of incapacitating episodes. During a November 2017 intestinal examination, the Veteran complained of alternating diarrhea and constipation, abdominal distension, nausea, and vomiting. The examiner noted more or less constant abdominal distress without weight loss, malnutrition, or other signs or symptoms. The examiner referred to a January 2017 EGD which showed hiatal hernia and gastritis. The Veteran reported she was let go from her previous employment due to increased absenteeism related to her IBS. The examiner reported that based on the Veteran’s symptoms and impact on her daily activities to include inability to work, her IBS is severe. During an August 2018 VA intestinal examination, the Veteran complained of alternating diarrhea and constipation, nausea, and vomiting. The examiner noted there was no evidence of weight loss or malnutrition. The examiner noted colon polyps are a progression of the Veteran’s service-connected diagnosis. During an August 2018 GERD examination, the Veteran complained of reflux, substernal pain, nausea, and vomiting. The examiner reported that the Veteran’s symptoms include burning in the stomach and occasional vomiting. She takes Prilosec daily. During an August 2018 stomach examination, the examiner noted a diagnosis of gastric ulcer. The Veteran endorsed recurring episodes of symptoms that are not severe, abdominal pain, and vomiting. There were no incapacitating episodes. Private treatment records include multiple complaints of nausea and vomiting without evidence of weight loss or melena. A January 2008 note included complaints of constipation and GERD with dyspepsia, heartburn, and indigestion. In a September 2012 note, the Veteran reported abdominal pain and vomiting without melena. The diagnosis was IBS. A March 2015 note indicated the Veteran had gained weight. In a January 2017 note, the Veteran complained of chronic abdominal pain and vomiting, but denied change in appetite, dysphagia, emesis or melena. In an additional January 2017 note, the Veteran complained of intermittent nausea, vomiting, irritable bowel, abdominal pain, and intermittent loose stools without reflux, heartburn, melena, or weight loss. In this case, the Veteran’s predominant symptoms are associated with IBS and have been rated under DC 7319. Under DC 7319, the maximum permissible rating assigned to a service connected disability of IBS is 30 percent, which requires symptoms of severe diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. The Board finds that an increased rating under DC 7319 is not warranted since the Veteran is currently assigned the maximum rating of 30 percent. The Board has also considered whether higher ratings are warranted under alternative DCs. In this regard, gastric ulcers are rated under DC 7304. In this case, the evidence fails to show the Veteran has symptoms of anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year to warrant the next higher 40 percent rating under DC 7304 for gastric ulcer. Additionally, GERD is rated by analogy to hiatal hernia under DC 7346. In this case, the evidence fails to show that the Veteran has symptoms of material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health to warrant the next higher 60 percent rating under DC 7346 for GERD. The Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119(1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the weight of the credible evidence demonstrates that since November 24, 2014, when service connection became effective, the Veteran’s IBS, gastric ulcer, hiatal hernia, and GERD disabilities have not warranted a rating higher than 30 percent. As the preponderance of the evidence is against the claim for an initial higher rating, the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Temporary Total Rating Private treatment records indicate the Veteran was hospitalized at a non-VA facility for a hysterectomy from February 28, 2017 to March 1, 2017. An August 2018 rating decision granted service connection for residuals of her hysterectomy and assigned a 100 percent disability rating from February 28, 2017 (the date of surgery) to June 1, 2017. As the Veteran was assigned a total rating for her service-connected residuals of hysterectomy, to include the period of hospitalization and convalescence, the issue of entitlement to a temporary total rating for the same period is rendered moot and therefore is dismissed. REASONS FOR REMAND The Board cannot make a fully-informed decision on the issue of entitlement to service connection for migraine headaches because the August 2018 VA examiner provided a rationale based on an inaccurate history. The examiner noted the Veteran’s STRs reveal no evidence of headache or a headache condition while she was in service; however, the STRs include complaints of headaches in November 1993 and January 1996 as indicated in the May 2018 Board remand. As such, an addendum opinion is necessary. This matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s migraine headaches are at least as likely as not incurred in active service. The examiner must consider the STRs including complaints of headaches in November 1993 and January 1996 as well as the lay history as provided by the Veteran. Matthew Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Diane M. Donahue Boushehri, Counsel