Citation Nr: 21002605 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 12-27 956 DATE: January 14, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for gastroesophageal reflux disease (GERD) with hiatal hernia, H. pylori, esophagitis, chronic diarrhea, and gall bladder and appendectomy surgery is denied. FINDING OF FACT During the entirety of the appeal period, the Veteran’s GERD with hiatal hernia, H. pylori, esophagitis, chronic diarrhea, and gall bladder and appendectomy surgery more nearly approximates severe symptomatology of diarrhea, or alternating diarrhea and constipation, with frequent episodes of bowel disturbance with abdominal distress. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for GERD with hiatal hernia, H. pylori, esophagitis, chronic diarrhea, and gall bladder and appendectomy surgery have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7399-7319. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1980 to August 2000. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA). In December 2017, the Veteran provided testimony at a video conference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. In February 2018, the Board remanded the claim on appeal, as well as the claims for service connection for right ankle and left ankle disabilities and entitlement to a total disability rating based on individual unemployability (TDIU). Subsequently, in an August 2020 rating decision, service connection for left ankle arthritis and right ankle arthritis was granted from March 19, 2016 and TDIU was granted from September 24, 2015, the day he stopped working. This constitutes a full grant of benefits sought on appeal. Therefore, those claims are no longer on appeal before the Board. The Board notes that additional VA medical treatment records were added to the claims file after the appeal was last adjudicated in the August 2020 supplemental statement of the case (SSOC). However, these records are cumulative of the records previously considered and/or are not relevant to the claim decided herein. Entitlement to a disability rating in excess of 30 percent for GERD with hiatal hernia, H. pylori, esophagitis, chronic diarrhea, and gall bladder and appendectomy surgery. The Veteran contends that a higher rating than 30 percent is warranted for his service-connected GERD with hiatal hernia, H. pylori, esophagitis, chronic diarrhea, and gall bladder and appendectomy surgery. As a background, a May 2011 rating decision granted service connection for GERD and hiatal hernia and assigned a noncompensable rating under 38 C.F.R. § 4.114, Diagnostic Code 7346, effective September 1, 2000. The August 2011 rating decision on appeal granted service connection for H. pylori, esophagitis, as well as chronic diarrhea, and assigned a single 10 percent rating for GERD with hiatal hernia, H. pylori, esophagitis, chronic diarrhea, and gall bladder and appendectomy surgery under Diagnostic Code 7399-7346, effective April 8, 2011. The RO explained that all service-connected abdominal disabilities have been combined together. The RO cited to 38 C.F.R. § 4.113, which states that abdominal disease of the digestive system produce a common disability picture despite their location or origin and consequently, coexisting disease in the abdominal area cannot be separately evaluated because VA cannot grant separate ratings for disabilities whose symptoms overlap. In a September 2012 rating decision, an increased rating of 30 percent was assigned for GERD with hiatal hernia, H. pylori, esophagitis, chronic diarrhea, and gall bladder and appendectomy surgery under Diagnostic Code 7399-7319, effective April 8, 2011. Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Evaluation of a service-connected disability requires a review of a veteran’s medical history with regard to that disorder. However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 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 § 4.14. 38 C.F.R. § 4.113. Ratings under 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. 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. Id. 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. See 38 C.F.R. § 4.27. An unlisted disease, injury, or residual condition is rated by analogy with the first two digits selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be “99” for all unlisted conditions. See 38 C.F.R. § 4.27. Hyphenated diagnostic codes may be used when rating an unlisted condition by analogy; the additional code shown after the hyphen identifies the basis for the evaluation assigned. Rating by analogy is appropriate for an unlisted condition where a closely related condition, which approximates the anatomical localization, symptomatology, and functional impairment, is available. See 38 C.F.R. §§ 4.20, 4.27. Diagnostic Code 7319 provides ratings for irritable colon syndrome, which includes irritable bowel syndrome (IBS) (spastic colitis, mucous colitis, etc.). Severe irritable colon syndrome, with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress, is rated 30 percent disabling. 38 C.F.R. § 4.114. 30 percent is the highest schedular rating for this Diagnostic Code. Hiatal hernias are rated under Diagnostic Code 7346. 38 C.F.R. § 4.114. Hiatal hernia with two or more of the symptoms for the 30 percent rating of less severity is rated 10 percent disabling. 38 C.F.R. § 4.114, Diagnostic Code 7346. Hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, is rated 30 percent disabling. Id. 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, is rated 60 percent disabling. Id. The words “mild,” “moderate,” and “severe” are not defined in the above rating criteria. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. After a full review of the record, and as discussed below, the Board concludes that a disability rating in excess of 30 percent for GERD with hiatal hernia, H. pylori, esophagitis, chronic diarrhea, and gall bladder and appendectomy surgery is not warranted. At an August 2011 VA examination, the Veteran gave a history of gallbladder surgical removal with simultaneous appendectomy in service. Currently, he complained of diarrhetic stools with his bowel movements daily. Occasionally, he had bowel movements two times a day, both loose or diarrhetic. He was given medication for his diarrhea but was advised to stop taking it after it caused significant constipation. Physical examination of the abdomen was essentially normal, with no palpable organomegaly or miss, no tenderness, and no hernia. At a May 2012 VA examination, the Veteran reported a history of ventral hernia repair, but he reported no current symptoms of problems relating to the repaired hernia or the surgery scar. He reported worsening diarrhea he attributed to his gallbladder surgery. At a July 2015 VA Intestinal Conditions examination, the Veteran reported he had chronic diarrhea after his gallbladder and appendectomy. He stated in the last year his diarrhea was worse and after each meal, he usually had a bowel movement. He stated he had tried several medications prescribed by his physician; however, these medications caused constipation. Currently, he stated he was not taking any medication. Usually, he had three to six bowel movements per day. He did not have weight loss or malnutrition attributable to an intestinal condition. The examiner found that the Veteran’s intestinal condition did not impact the Veteran’s ability to work. A July 2015 VA Esophageal Conditions examination report notes a diagnosis of GERD with mild esophagitis. The Veteran reported that currently, he took Omeprazole daily for GERD. His symptoms were usually controlled with Omeprazole and care with diet. He had infrequent episodes of epigastric distress and reflux due to GERD. A July 2015 VA Stomach and Duodenal Conditions examination report indicates that the Veteran’s duodenal ulcer diagnosed in 1988 to 1999 resolved and helicobacter pylori (H. pylori) finding was negative. A July 2015 VA Gallbladder and Pancreas Conditions examination report notes the Veteran’s history of cholecystectomy and appendectomy in 1998. Currently, he had diarrhea attributable to this condition. He reported loose watery stools after each meal, usually three times but as many as four to six times, daily. In a May 2018 VA Hernias Disability Benefits Questionnaire (DBQ), the Veteran reported tenderness to abdomen two to three times a week. Examination revealed healed postoperative ventral hernia repair. A February 2019 VA Intestinal Conditions DBQ prepared by a private physician reflects diagnoses of chronic diarrhea and peptic ulcer disease with history of gastrointestinal bleed. The Veteran indicated that continuous medication was required for control of his intestinal condition, specifically cholestyramine powder and probiotics. He had an ongoing problem of frequent watery bowel movements after each meal. He had no weight loss, malnutrition, or serious complications or general health effects attributable to the intestinal condition. The physician found that the Veteran’s intestinal condition impacted his ability to work because he was unable to stay away from a bathroom due to severe watery diarrhea after each meal or snack. A March 2019 VA Intestinal Conditions DBQ reflects a diagnosis of chronic diarrhea. The Veteran reported that since gallbladder removal he had been having issues with diarrhea. He tried various treatment regimens, but nothing worked. Currently, after every meal, he had diarrhea and continued to go all day long. He reported at least four times a day, he had bowel movements, which interfered with social activities because he always had to go to the bathroom coming to the point where he would have to wear diapers soon. It was noted that he had frequent episodes of bowel disturbance with abdominal distress, with episodes of exacerbations or attacks of the intestinal condition where he experienced intermittent episodes where he has to go several times. However, the Veteran did not have weight loss or malnutrition attributable to the intestinal condition. The examiner found that the Veteran’s intestinal condition impacted his ability to work as it required restroom to be in close proximity and bathroom breaks were required as needed when symptoms occurred. VA treatment records show ongoing problem with diarrhea and GERD, stable with infrequent episodes of mid-epigastric tenderness and mild inflammation of the esophagus and stomach. Through numerous written statements and during his December 2017 Board hearing, the Veteran testified that he experienced severe diarrhea, eight to 12 times daily, with consumption of anything. He stated that the chronic diarrhea negatively affected his daily activities due to having to go to bathroom all the time. He also stated that it prevented him from safely performing his duties as a police officer/corrections officer, and he stopped working in September 2015. The Board has considered the Veteran’s lay statements of record and finds that he is competent to report symptomatology relating to his disability and his statements regarding the gastrointestinal symptoms are credible. However, the lay evidence, as well as the objective medical evidence, concerning the nature and extent of the Veteran’s disability does not show that a disability rating in excess of 30 percent is warranted in this case. A 30 percent rating, which contemplates the Veteran’s severe diarrhea symptoms, is the highest schedular award possible for GERD with hiatal hernia, H. pylori, esophagitis, chronic diarrhea, and gall bladder and appendectomy surgery. As the Veteran is already in receipt of the maximum benefit allowed under Diagnostic Code 7319, an increased rating under that diagnostic code is not for application. The Board has considered the application of other diagnostic codes, but no others are applicable in this instance. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A rating of 50 percent could potentially be assigned under Diagnostic Code 7301 (adhesions) for definite partial obstruction shown by X-ray and frequent and prolonged episodes of severe colic distention, nausea or vomiting. A rating of 60 percent could potentially be assigned under Diagnostic Code 7307 (gastritis) for severe hemorrhages or large ulcerated or eroded areas. A rating of 60 percent could potentially be assigned under Diagnostic Code 7323 (colitis) for severe ulcerative colitis with numerous attacks a year and malnutrition. Finally, a rating of 60 percent could potentially be assigned under Diagnostic Code 7346 (GERD) for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia or for other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, Diagnostic Codes 7301, 7307, 7323, 7346. However, throughout the entire appellate period, there is no objective or subjective evidence that the Veteran’s overall intestinal disability picture approximates any of these rating criteria. A review of the relevant treatment records and examination reports show that the Veteran has complained of chronic diarrhea, abdominal pain and some weight loss. However, there was no diagnosis of, or evidence suggestive of colitis, adhesions, severe hemorrhages, large ulcerated or eroded areas, anemia, malnutrition, or significant weight loss. As shown above, the Board has considered the Veteran’s disability under other pertinent criteria, but finds that there are no other rating codes which either provide for a rating higher than the currently-assigned rating of 30 percent, or are appropriate for rating the Veteran’s GERD with hiatal hernia, H. pylori, esophagitis, chronic diarrhea, and gall bladder and appendectomy surgery. Accordingly, the most appropriate diagnostic code for rating purposes is Diagnostic Code 7319. In short, the Board has considered rating the service-connected disability under other possibly applicable diagnostic codes found at 38 C.F.R. § 4.114 (containing the schedule for rating disorders of the digestive system), but finds none applicable that would grant the Veteran a higher disability rating. In this regard, the Board finds that Diagnostic Code 7319 is the most appropriate code to rate the Veteran’s service-connected intestinal condition, because the Veteran is diagnosed with diarrhea and GERD, and the symptoms and impairment described by the Veteran and the treatment records show symptoms and impairment consistent with the rating criteria under Diagnostic Code 7319. See Butts v. Brown, 5 Vet. App. 532, 538 (1993); see also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Based on the foregoing, the Board concludes that the Veteran’s GERD with hiatal hernia, H. pylori, esophagitis, chronic diarrhea, and gall bladder and appendectomy surgery has been no more than 30 percent disabling for the period on appeal. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. J. In, 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.