Citation Nr: 18157710 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 17-04 830 DATE: December 13, 2018 ORDER Entitlement to a rating higher than 30 percent for irritable bowel syndrome and diverticulosis is denied. FINDING OF FACT The Veteran’s predominant digestive disability is irritable bowel syndrome, which has been rated throughout the appeal period as 30 percent disabling, the maximum rating authorized under Diagnostic Code 7319. CONCLUSION OF LAW The criteria for a rating higher than 30 percent for irritable bowel syndrome and diverticulosis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.114, Diagnostic Code 7319 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1984 to October 1987, and from February 2003 to January 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) regional office (RO). Entitlement to a rating higher than 30 percent for irritable bowel syndrome and diverticulosis is denied. In October 2008, the RO granted service connection for irritable bowel syndrome (IBS). The disorder has been rated as 30 percent disabling since October 2007. On April 16, 2014, VA received the Veteran’s claim for increased rating for this disorder. In the October 2014 rating decision on appeal, the RO granted service connection for diverticulosis in addition to IBS, but denied the claim for a rating in excess of 30 percent. In the decision below, the Board will consider whether a higher rating has been warranted at any time since April 16, 2013, which is one year prior to the date of claim. See 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter before the Board, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7 (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Rating Schedule states that there are diseases of the digestive system 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. See 38 C.F.R. §§ 4.113, 4.114. The Rating Schedule prohibits DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, from being combined with each other. A single evaluation will be assigned under the DC 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. In this matter, the RO has found IBS the predominant digestive disability. This is supported by VA examination reports dated in October 2014 and December 2016. This is also supported by January and July 2016 private medical reports, which discuss IBS and its symptoms. This evidence also indicates that the Veteran has experienced bloody stools related to diverticulosis. The RO has rated digestive disability under the hyphenated DC 7399-7319. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. In this case, DC 7399 is used to evaluate IBS, which is not specifically listed in the schedule, but is rated by analogy to the similar disability of irritable colon syndrome addressed under DC 7319. 38 C.F.R. § 4.27. Under this DC, the maximum rating authorized is 30 percent. As the Veteran’s disability has been rated 30 percent disabling throughout the appeal period, a higher rating under DC 7319 cannot be granted. The Board has considered whether other DCs under 38 C.F.R. § 4.114 authorizing a rating higher than 30 percent could lead to a higher rating here. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). For example, the Board has considered the representative’s November 2014 argument that the Veteran be rated for ulcerative colitis under DC 7323, which authorizes a 60 percent rating. However, the evidence of record indicates that the Veteran has not been diagnosed with colitis. Further, the criteria for a 60 percent rating under DC 7323 have not been approximated here. Thereunder, a 60 percent rating is warranted for severe ulcerative colitis with numerous attacks a year and malnutrition and health only fair during remissions. 38 C.F.R. § 4.114, Diagnostic Code 7323. Here, no evidence indicates diagnosis of an ulcer or of colitis, and both VA reports indicate that, although the service-connected disorder has caused bleeding, distention, constipation, pain, cramping, diarrhea, nausea, and “frequent episodes” of abdominal distress, the disorder has not resulted in weight loss, malnutrition, serious complications with health, or neoplasm. Indeed, the December 2016 examiner described the disorder as stable of moderate severity without documented flare ups of diverticulosis since the October 2014 examination. As such, neither DC 7323, nor the others provided under 38 C.F.R. § 4.114, would lead to a higher rating here. As the preponderance of the evidence is against the claim, the reasonable doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher McEntee, Counsel