Citation Nr: 20004794 Decision Date: 01/23/20 Archive Date: 01/21/20 DOCKET NO. 17-07 908 DATE: January 23, 2020 ISSUE Entitlement to a disability rating in excess of 30 percent from May 29, 2013 to September 27, 2018, and in excess of 40 percent from September 28, 2018, for a gastrointestinal disability. ORDER Entitlement to a disability rating in excess of 30 percent from May 29, 2013 to September 27, 2018, for a gastrointestinal disability is denied. Entitlement to a disability rating in excess of 40 percent from September 28, 2018, for a gastrointestinal disability is denied. FINDINGS OF FACT 1. During the period from May 29, 2013 to September 27, 2018, the Veteran’s gastrointestinal disability was manifested by persistently recurrent epigastric distress, pyrosis, regurgitation, substernal arm pain, and associated sleep disturbances. He experiences recurring episodes of severe symptoms two or three times per year, continuous abdominal pain, and moderate gastritis. He does not have a moderately severe duodenal ulcer with recurrent incapacitating episodes averaging 10 days or more; nor is his gastritis described as chronic with severe hemorrhages, or with large ulcerated areas; nor has he demonstrated vomiting with material weight loss and hematemesis. 2. From September 28, 2018, the Veteran’s gastrointestinal disability causes him to consistently wake up during the night with recurrent pyrosis, with additional symptoms of reflux, diarrhea, daily abdominal pain, and mild melena that occurs twice per year with episodes lasting 1-9 days. He does not have a severe duodenal ulcer with periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss; nor is his gastritis described as chronic with severe hemorrhages, or with large ulcerated areas; nor has he demonstrated vomiting with material weight loss and hematemesis. CONCLUSIONS OF LAW 1. During the period from May 29, 2013 to September 27, 2018, the criteria for a rating in excess of 30 percent for a gastrointestinal disability have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Codes, 7305, 7307, 7346. 2. From September 28, 2018, the criteria for a rating in excess of 40 percent for a gastrointestinal disability have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Codes, 7305, 7307, 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1961 to January 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal form a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a November 2017 Board video conference hearing. A transcript of that hearing has been associated with the claims file. By way of background, the Veteran’s original claim for entitlement to service connection for bleeding ulcers was granted in a September 1983 rating decision. The Veteran subsequently filed for an increase in his disability rating, and in a rating decision from March 2014, the RO increased the Veteran’s disability rating to 20 percent, effective May 29, 2013. At that time, the RO also reclassified the Veteran’s disability as duodenal peptic ulcer disease, with history of upper gastrointestinal hemorrhage, gastritis and helicobacter pylori, to account for additional symptomatology. The Veteran filed a Notice of Disagreement (NOD) in May 2014, claiming that his disability was worse than currently rated. The Veteran’s claim was certified to the Board, and in January 2018, the Board recharacterized the claim for increase as a gastrointestinal disability under Clemons v. Shinseki, 23 Vet. App. 1 (2009). Under the same principal outlined in Clemons and given the closely related symptoms associated with gastroesophageal reflux disease (GERD), the Board further recognized the issue of service connection for GERD as an inferred claim that was inextricably intertwined with the increased rating claim that had been perfected for appeal. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Each of the Veteran’s intertwined claims were remanded for additional development, including a VA examination to assess the current severity of the Veteran’s gastrointestinal disability. Following that VA examination in September 2018, the RO reclassified the Veteran’s gastrointestinal disability to include GERD, and wrote the issue as follows: duodenal peptic ulcer disease, gastritis, helicobacter pylori and gastroesophageal reflux disease (GERD), with history of upper gastrointestinal hemorrhage. The Board also notes that, once the September 2018 VA examination indicated a nexus between his GERD and his gastrointestinal disability, the RO changed the Veteran’s rating for each of the staged-rating periods, increasing the disability rating for May 29, 2013 to September 27, 2018 of 20 to 30 percent disabling, and from September 28, 2018 of 30 to 40 percent disabling. The grant of increased ratings during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. During this reclassification, the Veteran’s Diagnostic code was changed from 7399-7346 to 7305, to incorporate the additional symptoms of GERD. Importantly, the RO was prohibited from assigning a separate rating for the Veteran’s GERD, since ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive “will not be combined with each other.” The regulation specifically directs that a single rating will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants elevation. See 38 C.F.R. § 4.114. Therefore, upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In consideration of the above, the Board finds that the Veteran’s previous inferred claim of entitlement to service connection for GERD has been subsumed by the current claim for entitlement to an increased rating for a gastrointestinal disability. As such, the previous claim for service connection is no longer before the Board. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to a disability rating in excess of 30 percent from May 29, 2013 to September 27, 2018, and in excess of 40 percent from September 28, 2018, for a gastrointestinal disability. The Veteran is claiming that his gastrointestinal disability is worse than currently rated for each rating period. The Veteran’s Representative submitted an Appellate Brief in December 2019, arguing generally that the Veteran is entitled to an increased evaluation for his gastrointestinal disability. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. 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 the residual conditions in civilian occupations. 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. a) The Period from May 29, 2013 to September 27, 2018 During the period from May 29, 2013 to September 27, 2018, the Veteran’s gastrointestinal disability was rated by analogy under 38 C.F.R. § 4.114. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. During this time period, the Veteran’s gastrointestinal disability was rated under Diagnostic Code 7399-7346, which is analogous to hernia hiatal. As stated above, the Board notes that diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area, as indicated by the instructions 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, 4.113, 4.114. As such, ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive “will not be combined with each other.” The regulation specifically directs that a single rating will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants elevation. See 38 C.F.R. § 4.114. Therefore, 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. See 38 C.F.R. §§ 4.113, 4.114 Under Diagnostic Code 7346, the maximum rating of 60 percent 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. 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 10 percent rating is assigned for two or more symptoms associated with the 30 percent rating, but of less severity. 38 C.F.R. § 4.114, Diagnostic Code 7346. For purposes of evaluating digestive conditions, “material” weight loss is not defined. However, “substantial weight loss” is present when there is a loss of greater than 20 percent of the baseline weight and “minor weight loss” is found with weight loss of 10 to 20 percent of the baseline weight; the losses must be sustained for three months or longer. 38 C.F.R. § 4.112. Under Diagnostic Code 7305, a 20 percent rating is assigned for a moderate ulcer, which has recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations. A 40 percent rating is assigned for a moderately severe ulcer, which is 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 60 percent (maximum) rating is assigned for a severe duodenal ulcer with 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. 38 C.F.R. § 4.114. Under Diagnostic Code 7307, a 10 percent disability rating is warranted for chronic gastritis with small nodular lesions and symptoms; a 30 percent disability rating is warranted for chronic gastritis with multiple small eroded or ulcerated areas and symptoms; and a maximum 60 percent disability rating is warranted for chronic gastritis with severe hemorrhages or large ulcerated or eroded areas. 38 C.F.R. § 4.114, Diagnostic Code 7307. Turning to the available evidence, the Veteran testified before the undersigned at a Board Hearing in November 2017. During the Veteran’s Hearing, he described his symptoms as nausea and vomiting, which occurs “about monthly or once or twice a month … the nausea hits in. Or I get the severe acid reflux to where I just throw up and it comes up.” He testified that he does not experience any “black, tarry stool or any throwing up of blood... it’s been just the mucus or the acid reflux that comes up.” The Veteran stated that he experiences “episodes of abdominal pain,” which he described as daily. The Veteran is competent to report the symptoms he experiences, such as those associated with his gastrointestinal disability. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Turning to the medical evidence, the Veteran’s claims file includes an upper endoscopy from June 2013, which found mild distal esophagitis, including bile within the stomach with evidence of a chemical gastropathy. During the exam, “a small duodenal diverticulum” was noted, as well as mild duodenitis, however there was “no ulceration within the diverticulum.” A biopsy taken during that same exam revealed “moderate gastritis,” and the Veteran was positive for helicobacter pylori. The Veteran was seen for an in-person VA examination in November 2016. The examiner had access to the Veteran’s claims file and medical history. The Veteran reported symptoms of persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, arm pain, and sleep disturbances caused by esophageal reflux, which he stated recur “4 or more” times per year. The examiner found that no hiatal hernia was noted, and that the esophagitis was mild. The Veteran reported taking continuous medication for his condition. The examiner stated that the recurring episodes of symptoms “are not severe,” and that abdominal pain was continuous, occurred at least monthly, and was only partially relieved by standard ulcer therapy. The Veteran had no incapacitating episodes, nor other conditions, complications, or symptoms. There is no evidence that the VA examiners were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran’s claims file also contains medical evidence of routine checkups and consultations for other illnesses and disabilities. The information provided in that evidence is generally limited to complaints of acid reflux, heartburn (pyrosis), and occasional abdominal pain. The information provided during the relevant period on appeal is not comprehensive for disability ratings purposes, however the Board has noted the broadly consistent nature of the Veteran’s symptoms during this time period. In consideration of the above, the Veteran’s gastrointestinal disability for the period from May 29, 2013 to September 27, 2018 most nearly approximates the 30 percent disability rating. The Veteran demonstrated persistently recurrent epigastric distress, to include pyrosis, regurgitation and substernal arm pain. The VA examiner did not describe the Veteran’s symptoms as “considerable,” however did indicate that it causes sleep disturbances. Under DC 7346, this symptomatology reflects the 30 percent disability rating. Under DC 7305, the Veteran demonstrated recurring episodes of severe symptoms two or three times a year, with “continuous” abdominal pain, which approximates a 20 percent disability rating. Under DC 7307, the Veteran’s gastritis was described as moderate, however no ulcerations were found, which demonstrates a 10 percent disability rating. In consideration of the above codes, the Veteran’s gastrointestinal disability has not been described as having a moderately severe duodenal ulcer with recurrent incapacitating episodes averaging 10 days or more (DC 7305); his gastritis has not been described as chronic with severe hemorrhages, or with large ulcerated areas (DC 7307); nor has his GERD (rated as hernia hiatal under DC 7346) been described as having symptoms of pain, vomiting with material weight loss and hematemesis, nor described as having a “severe impairment of health.” Importantly, and as noted above, a separate compensable rating for GERD and/or gastritis is not warranted in this case as 38 C.F.R. § 4.114 expressly prohibits ratings for these disabilities to be combined with the rating for the duodenal ulcer. The schedule of ratings for the digestive system, to include Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. 38 C.F.R. § 4.114. Thus, as the Veteran’s gastrointestinal problems must be classed under a single Diagnostic Code, the Veteran’s symptomatology has been rated under DC 7346, as that is the Diagnostic Code which allows for the highest rating during this time period. Other applicable codes would entitle the Veteran to either a 20 percent rating (DC 7305), or a 10 percent disability rating (7307), each of which is lower than the Veteran’s current disability rating of 30 percent. Accordingly, the Board finds that the currently assigned 30 percent rating most nearly approximates the Veteran’s service-connected gastrointestinal disability for the period from May 29, 2013 to September 27, 2018. At no point during the applicable rating period have the criteria for a rating greater than 30 percent been met or approximated. The Board has considered the benefit of the doubt doctrine. However, because the preponderance of the evidence is against a finding that a rating greater than 30 percent is warranted, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107 (b). b) The Period from September 28, 2018 The Veteran was seen for an in-person VA examination in September 2018 for his GERD. The examiner had access to the Veteran’s claims file, including his medical history. During the exam, the Veteran reported that the condition had “gotten worse,” and that he is awoken during the night, several times per month, with a burning sensation in his chest and throat. The Veteran takes antacids and other medication for daily abdominal pain, with “occasional diarrhea.” The examiner found symptoms of pyrosis and reflux, but denied any esophageal stricture or spasm, or any other pertinent findings, complications and/or symptoms. The Veteran was also given a separate VA examination during this same appointment for his stomach and “duodenal conditions (not including Gerd or esophageal disorders).” The examiner confirmed the diagnoses of duodenal ulcer, helicobacter pylori, and moderate gastritis. The examiner indicated that the Veteran has abdominal pain that occurs at least monthly. He also indicated “mild” melena, that occurs twice per year, and each episode lasts 1-9 days. The Veteran does not experience any incapacitating episodes due to his stomach or duodenum condition. No other physical findings, complications, or symptoms were found. There is no evidence that the VA examiner was not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Veteran’s gastrointestinal disability for the period from September 28, 2018 most nearly approximates the 40 percent disability rating. The Veteran reported that his gastrointestinal disability had gotten worse, and the VA examiner found additional symptoms which reflect that. The Veteran demonstrated being awoken during the night several times per month with recurrent pyrosis in his chest and throat. Symptoms of reflux were found, as well as occasional diarrhea. During this time period, the Veteran’s abdominal pain occurs daily, and he now experiences mild melena that occurs twice per year, with episodes lasting 1-9 days. The Veteran’s gastrointestinal disability has not however been described as having a severe duodenal ulcer with periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss (DC 7305); his gastritis has not been described as chronic with severe hemorrhages, or with large ulcerated areas (DC 7307); nor has his GERD (rated as hernia hiatal under DC 7346) been described as having symptoms of pain, vomiting with material weight loss and hematemesis, nor described as having a “severe impairment of health.” Each of those rating codes matches the disability criteria for a 60 percent disability rating, which does not most nearly approximate the Veteran’s gastrointestinal disability. Importantly, these symptoms when considered together, represent a worsening of the Veteran’s symptomatology for his gastrointestinal disability from September 28, 2019. Thus, in consideration of the Veteran’s additional symptomatology, as well as the regulations of 38 C.F.R. § 4.114, the Board concurs with the RO assignment of a 40 percent disability rating, as that disability rating under Diagnostic Code 7503 is the only rating code that matches the symptomatology of the Veteran’s current disability, and which also contains a disability rating that the next immediately higher level for evaluation beyond 30 percent to account for the Veteran’s worsening gastrointestinal disability. Again, the regulation specifically directs that a single rating will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants elevation. See 38 C.F.R. § 4.114 Importantly, and as noted above, a separate compensable rating for GERD and/or gastritis is not warranted in this case as 38 C.F.R. § 4.114 expressly prohibits ratings for these disabilities to be combined with the rating for the duodenal ulcer. 38 C.F.R. § 4.114. Accordingly, the Board finds that the currently assigned 40 percent rating most nearly approximates the Veteran’s service-connected gastrointestinal disability for the period from September 28, 2018. At no point during the applicable rating period have the criteria for a rating greater than 40 percent been met or approximated. The Board has considered the benefit of the doubt doctrine. However, because the preponderance of the evidence is against a finding that a rating greater than 40 percent is warranted, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107 (b). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.