Citation Nr: 21063448 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 16-25 715 DATE: October 14, 2021 ORDER Entitlement to a 30 percent disability rating, but no higher, for gastroesophageal reflux disorder (GERD) prior to March 2, 2020 is granted. Entitlement to a disability rating in excess of 30 percent for GERD with irritable bowel syndrome (IBS) and diarrhea from March 2, 2020 is denied. Entitlement to a compensable disability rating for hypertension (HTN) is denied. FINDINGS OF FACT 1. Prior to March 2, 2020, the Veteran's GERD was primarily manifested by persistently recurrent pyrosis, reflux, chest pain, abdominal pain, dysphagia, heartburn, diarrhea, and epigastric distress. Material weight loss, and/or hematemesis or melena with moderate anemia or other symptom combinations productive of severe impairment of health have not been demonstrated. 2. From March 2, 2020, the Veteran's GERD with IBS and diarrhea was shown to be severe, with alternating diarrhea and constipation with more or less constant abdominal distress. 3. The Veteran's HTN was not shown to be predominantly 100 or more, his systolic pressure was not predominantly 160 or more, and he did not have a history of diastolic pressure predominantly 100 or more requiring continuous medication for control. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 30 percent disability rating, but no higher, for gastroesophageal reflux disorder (GERD) prior to March 2, 2020 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346. 2. The criteria for entitlement to a disability rating in excess of 30 percent for gastroesophageal reflux disorder (GERD) with irritable bowel syndrome (IBS) with diarrhea from March 2, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7319. 3. The criteria for entitlement to a compensable disability rating for hypertension (HTN) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.104, Diagnostic Code (Code) 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty with the United States Marine Corps from June 2006 to August 2013. This case comes before the Board of Veteran's Appeals (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). In April 2020, the Board remanded the claim for a compensable disability rating for HTN and granted a disability rating of 10 percent for GERD. The Veteran filed an appeal to the Court of Appeals of Veterans Claims (CAVC) contesting the Board's January 2020 decision regarding GERD. In December 2020, on the basis of a Joint Motion for Partial Remand (JMPR), CAVC vacated and remanded the Board's decision for further consideration. CAVC found that in determining that the Veteran did not have the required associated pain needed for a rating in excess of 10 percent, the Board failed to discuss an August 2015 VA treatment records that noted his complaints of intermittent retro-sternal pain that he attributed to his GERD condition. Also, the Board failed to address CAVC's decisions in Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), and McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc) in its discussion regarding the Veteran's use of medication. CAVC found that the Board must address the impact of CAVC's decisions in Jones and McCarroll when discussing his use of medication and his contention that his condition worsened if he stopped taking his medication. Lastly, CAVC found that the Board must treat the Veteran's rating as an analogous rating. The matter is now before the Board again for further appellate review. Evaluation of HTN has also returned to the Board following action on the Remand directives. Records indicate the Veteran remains employed, and so a claim for a finding of total disability due to individual unemployability (TDIU) is not inferred as part of the claims for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 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. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). GERD In a September 2015 rating decision, the AOJ granted service connection for GERD and assigned a non-compensable rating under Code 7346, effective August 22, 2013. An April 2020 Board decision granted an increased 10 percent disability rating for GERD under Code 7346; the Veteran appealed to CAVC for a yet higher rating, and such issue was returned to the Board in December 2020. In a May 2021 decision, the AOJ granted service connection for irritable bowel syndrome (IBS) and awarded a separate 30 percent rating effective March 2, 2020. In a June 2021 rating decision, the AOJ recognized a clear and unmistakable error (CUE) in the assigned separate ratings for two gastrointestinal disorders, and combined the issues into a single digestive disorder (GERD with IBS with diarrhea) and assigned a 30 percent rating, under Code 7319, effective March 2, 2020. The finding of CUE reflects that under 38 C.F.R. § 4.114, ratings under diagnostic codes 7346 and 7319 may not be combined with each other. Instead, a single evaluation will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. The issues regarding evaluation of the two digestive disorders are therefore characterized as above. Under Diagnostic Code 7346, a 10 percent rating is assigned for two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is assigned for persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal (chest) pain, productive of considerable impairment of health. A 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. Under Diagnostic Code 7319, applicable to irritable colon syndrome (spastic colitis, mucous colitis, etc.), a 30 percent rating is warranted for severe disability with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. A 30 percent evaluation is the maximum schedular rating under this diagnostic code. In May 2015, the Veteran was afforded a VA examination. The Veteran was diagnosed with GERD. The Veteran took continuous medication for his disorder. The examiner noted 4 or more episodes of pyrosis and reflux per year. The Veteran did not have any epigastric distress, dysphagia, regurgitation, esophageal stricture, spasm, or acquired diverticulitis of the esophagus. An August 2015 VA treatment note documented that he had intermittent retro-sternal pain (chest pain). He attributed this pain to his GERD disorder. He noted that there were no triggers but most often it was with activity. He relieved his pain with rest. On a June 2016 statement, the Veteran indicated that he took medication for his GERD, but if he was to stop taking the medication, his condition would worsen. On August 2016 VA form 9, he wrote that he had periumbilical abdominal pain and acute lower GI bleeding. He noted that he had cracked teeth. He wrote that he felt his GERD was productive to a considerable impairment to his health. A July 2018 private treatment note documented that he was seen for a follow up after his EGD. The examiner noted that his EGD was unremarkable, and an empiric dilation was done. The Veteran's symptoms improved right after the procedure but only lasted about 2 weeks. He had dysphagia mostly to solids and was worse with certain foods like steak. His heartburn/reflux was okay; however, he did have diarrhea. He reported that he sometimes had cramping after eating. A September 2018 private treatment note documented that he was seen for a follow up after an esophageal manometry that he had for dysphagia. This showed frequent failed peristalsis but no evidence of achalasia. The examiner thought this was likely due to neurological or a smooth muscle problem. He indicated that he did not have many problems currently. He occasionally had issues with certain foods but infrequently. This usually happened with larger, harder foods like meat. The Veteran's reflux was doing fair. His condition was mostly controlled and if he had heartburn, he took TUMS and that took care of it. In November 2018, the Veteran was afforded a VA examination. He was diagnosed with GERD and hernia hiatal. The Veteran had daily episodes of pyrosis and the feeling of his throat tightening. The Veteran was seen in April 2018 and his endoscopy was normal. The Veteran used Nexium daily for his condition. He had signs/symptoms described as persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, and sleep disturbance caused by esophageal reflux. The frequency of his symptoms were 4 or more times per year and lasted 10 or more days. He did not have esophageal stricture, spasm, or diverticula of the esophagus. He had other complications of his condition, he indicated that he had to sleep siting up. The examiner opined that the Veteran's condition did not impact his ability to work. In April 2021, the Veteran was afforded a VA intestinal condition examination. He was diagnosed with GERD and IBS with diarrhea. He had symptoms of indigestion, abdominal pain, and diarrhea with soft stools. He had diarrhea with soft to watery stools that occurred 3 to 4 times a day. He noted that he sometimes was constipated. He had frequent episodes of bowel disturbance with abdominal distress. He did not have weight loss attributable to an intestinal condition. He did not have malnutrition, serious complications, and other general health effects attributable to the intestinal condition. He did not have a benign or malignant neoplasm or metastases related to an intestinal condition. The examiner opined that the Veteran's condition impacted his ability to work. He noted that the Veteran had daily diarrhea. Prior to March 2, 2020 The Board finds that for the period prior to March 2, 2020, the Veteran's GERD symptoms more nearly approximate the criteria contemplated by a higher 30 percent disability rating under Code 7346. The evidence of record showed that the Veteran's GERD was manifested by persistently recurrent pyrosis, reflux, chest pain, abdominal pain, dysphagia, heartburn, diarrhea, and epigastric distress, and substernal pain that has been productive of impairment of health. Accordingly, a higher 30 percent disability rating for GERD for the period prior to March 2, 2020. The Board finds that a 60 percent rating under Code 7346 is not warranted because the Veteran's symptoms were not productive of severe impairment of his general health. The November 2018 VA examination noted that his GERD did not impact his ability to work. His 2018 private treatment records noted that he did not have many problems with his condition. He reported that he occasionally had issues with certain foods but infrequently. Lastly, he indicated that his condition was fair to his private and VA physicians. In reaching this decision, the Board has considered the Veteran's argument that his symptoms would be worse if he did not take his medication. In Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), the Court held that "[a]bsent a clear statement [in the diagnostic code] setting out whether or how the Board should address the effects of medication . . . the Board may not deny entitlement to a higher disability rating on the basis of relief provided by medication." As can be seen in the above description of Code 7346, there is not an explicit statement indicating how the Board should treat the ameliorative effects of medication on the Veteran's GERD. Thus, pursuant to Jones, the Board may not deny entitlement to a higher disability rating based on the fact that the Veteran's use of medication lessens his symptoms of GERD. Accordingly, the Board must determine what the Veteran's GERD symptoms would be, absent his use of medication. The Board notes that the ameliorative effects of medications may not be discounted but are taken into consideration. McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016). The record reflects the Veteran's symptoms and complaints when his medication is not working. In light of these statements, the evidence provides an accurate representation of the Veteran's disability picture without the ameliorative effects of medication, in that symptoms would not cause a severe impairment of health. The Board further finds that the Veteran is not entitled to additional or higher ratings under any of the other diagnostic codes relating to the digestive symptoms. Diagnostic Code 7346 is very broad in the potential digestive symptomatology that it addresses, and directly discusses the Veteran's reported symptoms. Other diagnostic codes for digestive disabilities that provide for a potential rating greater than 30 percent are not more appropriate because the facts of the case do not support their application. See generally 38 C.F.R. § 4.114, Diagnostic Codes 7200 to 7354; see also Code 7305, 7306 (for duodenal and marginal ulcers, but such is not found in the Veteran's case); Code 7307 (for gastritis, but severe hemorrhages, or large ulcerated or eroded areas are not found in the Veteran's case); 7308 (for postgastrectomy syndrome, but such is not applicable as the Veteran has not undergone such procedure). Therefore, Diagnostic Code 7346 is properly applied here, as it is clearly the most appropriate codes for the Veteran's gastrointestinal disability prior to service connection of IBS. In summary, resolving all reasonable doubt in favor of the Veteran, for the period prior to March 2, 2020, a 30 percent disability rating, but no higher, for GERD under Diagnostic Code 7346 is granted. From March 2, 2020 As noted above, for the period from March 2, 2020, the Veteran is in receipt of a 30 percent rating under Diagnostic Code 7319, which provides that a maximum 30 percent rating is warranted for severe irritable colon syndrome with diarrhea or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114, Code 7319. Because this is the maximum schedular rating for IBS pursuant Diagnostic Code 7319, a higher rating cannot be assigned under that diagnostic code. The Board has also considered whether a higher evaluation would be warranted under Diagnostic Code 7346. However, the Veteran has not been shown to have symptoms of material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. The treatment records reflect that he had daily diarrhea and some constipation. The Board does not consider these symptoms alone to be productive of severe impairment of his general health, or to worsen the overall disability picture to an extent to require elevation of the current rating. As such, the criteria for a 60 percent evaluation under Diagnostic Code 7346 have not been met. Moreover, as stated above, the Veteran cannot be assigned a separate evaluation under Diagnostic Code 7346. Coexisting 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. See 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. 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. Based on the foregoing, the Board finds that for the period from March 2, 2020, the evidence is against a rating higher than 30 percent for GERD with IBS and diarrhea. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied in this regard. HTN The Veteran's hypertension is evaluated under Code 7101. Under Code 7101, a 10 percent rating is assigned for diastolic pressure predominately 100 or more, or; systolic pressure predominantly 160 or more, or is the minimum rating for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. Although the schedular criteria do not specifically outline any criteria for a noncompensable (0 percent) rating, the Board notes that a 0 percent rating is assigned when the requirements for a compensable evaluation are not met pursuant to 38 C.F.R. § 4.3. Service treatment records (STRs) show elevated blood pressures, and a diagnosis of hypertension, as well as the prescription of medication for control. However, there are no systolic readings of 160 or more, or diastolic readings of 100 or more. On his August 2016 substantive appeal, the Veteran wrote that his systolic pressure history was 160 or more and required continuous medication for control. However, post-service records show continued use of medication, with overall good control of blood pressure. An August 2015 VA treatment note documented that his blood pressure was 117/70. An August 2016 VA treatment note documented a blood pressure of 117/81. Blood pressure was 127/85 in September 2017. A July 2018 private treatment note documented blood pressure of 137/91 and 130/84 in September 2018. In September 2018, the Veteran reported that his systolic pressure went up to 150 "but very rarely." His blood pressure was recorded as 131/89 by the VA doctor. In a September 2019 VA treatment note, blood pressure was 123/80. A January 2020 private treatment note documented a reading of 177/108. This was the highest recorded systolic or diastolic pressure, and is isolated. In November 2020, the Veteran was afforded a VA examination. He was diagnosed with HTN. The Veteran did not have current symptoms at that time. He reported that the impact of his condition caused him to sometimes have a little anxiety. The Veteran treated his condition with continuous medication. The Veteran took Losartan Potassium for his condition. The Veteran did not have a history of a diastolic pressure elevation to predominantly 100 or more. His readings were: 138/92, 134/90, and 138/92 at the examination. The examiner opined that the Veteran's HTN impacted his ability to work. The examiner noted that his condition impacted him when he was working in hazardous environment, he sometimes got a little anxious that something worse could happen. The Board finds that overall, the evidence does not indicate diastolic blood pressure of predominantly 100 or more, or systolic pressure predominantly 160 or more. The Veteran also did not have a history of diastolic pressure predominantly 100 or more requiring continuous medication for control; the use of medication alone does not warrant a compensable rating. There are no other Diagnostic Codes that might apply to the Veteran's hypertension. The Board acknowledges that the Veteran reported that he had a systolic pressure history of 160 or more; however, the medial records do not demonstrate such. Notably, a November 2018 VA treatment note documented complaints that his systolic pressure went up to 150 systolic but "very rarely." In light of the foregoing, the Board finds that an initial compensable evaluation for hypertension is not warranted. The Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the claim. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Baxter 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.