Citation Nr: 21067871 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-36 000A DATE: November 5, 2021 ORDER Entitlement to a rating of 30 percent for GERD and IBS from December 6, 2016 to December 27, 2019 is granted. Entitlement to a rating of 60 percent for GERD and IBS for the period from December 28, 2019 is granted. FINDING OF FACT 1. For the period December 6, 2016 to December 27, 2019, the Veteran experienced symptoms of dysphagia, pyrosis, pain, melena, alternating diarrhea and constipation resulting in considerable impairment of health. 2. Since December 28, 2019, the Veteran's disability worsened such that he experienced symptoms of more or less constant abdominal distress with pain, vomiting, melena, dysphagia, pyrosis, regurgitation, bloating, fecal leakage, and alternating diarrhea and constipation resulting in severe impairment of health. CONCLUSION OF LAW 1. The criteria for entitlement to a rating of 30 percent for GERD and IBS for the period December 6, 2016 to December 27, 2019 have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.3, 4.7, 4.10; 4.104, Diagnostic Codes 7319, 7346. 2. The criteria for entitlement to a rating of 60 percent for GERD and IBS from December 28, 2019 and thereafter have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.3, 4.7, 4.10; 4.104, Diagnostic Codes 7319, 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Army from May 1984 to August 1984, January 2003 to January 2009, and March 2009 to September 2011. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a February 2017 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In March 2019, the Board remanded the issue on appeal for additional development, and the case has since been returned for further appellate review. A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Board's March 2019 remand directed the RO to provide the Veteran with an in-person examination to determine the nature and severity of his irritable bowel syndrome (IBS) and gastroesophageal reflux disease (GERD) symptoms. Examinations addressing the Veteran's GERD and IBS were conducted in December 2019. The remand also instructed the RO to obtain any outstanding VA treatment records and the results of a privately administrated 2016 colonoscopy. Pertinent VA treatment records have been associated with the claims file. In October 2019, the RO provided the Veteran with the proper information release forms to obtain results of the 2016 colonoscopy, however, the Veteran did not provide the necessary information to request his private medical records. As such, the Board finds the RO has achieved substantial compliance with the March 2019 remand directives. Id. at 271. Increased Rating The Veteran contends that he is entitled to an increased rating for his service-connected irritable bowel syndrome (IBS) and gastroesophageal reflux disease (GERD). He asserts his symptoms of stomach pain, loose stool, constipation, indigestion, flatulence, vomiting, bloody stools, and heartburn with acid reflux have worsened such that a higher disability rating is warranted. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence of record indicates fluctuations in the severity of symptoms during the rating period on appeal, an assignment of staged ratings is permissible. See Fenderson v. West, 12 Vet. App. 119, 126-28 (1999). Additionally, the Veteran asserts his symptoms of GERD and IBS are not related and warrant separate ratings. However, by regulation, gastrointestinal disabilities are rated as "diseases of the digestive system." While differing in the site of pathology, such diseases produce a common disability picture characterized by varying degrees of abdominal distress or pain, anemia, and disturbances in nutrition. Consequently, coexisting diseases, 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. 38 C.F.R. §§ 4.14, 4.114. Specifically, ratings for disabilities under Diagnostic Codes (DC) 7301 to 7329 and 7345 to 7348 will not be combined. 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. Therefore, a determination must be made regarding the predominant disability picture for the Veteran. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran's IBS with GERD has been analogously rated under DC 7319-7336 for irritable colon syndrome and hemorrhoids, and DC 7346-7319 for hiatal hernia and irritable colon syndrome. He was awarded a noncompensable initial rating from October 1, 2011 for internal hemorrhoids under DC 7319-7336, which is now separately rated. Following a request for increased rating, the Veteran received a 10 percent rating under DC 7319-7346 effective December 6, 2016, the date his claim was received. Following the Board's remand, the RO awarded a 30 percent disability rating, the maximum rating available for DC 7319-7346, effective the date of his last VA examination, December 28, 2019. Under DC 7319, mild irritable colon syndrome with disturbances of bowel function with occasional episodes of abdominal distress, warrants a noncompensable rating. A 10 percent rating is warranted where there is moderate irritable colon syndrome with frequent episodes of bowel disturbance with abdominal distress. Severe irritable colon syndrome, with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress, warrants a 30 percent rating. 38 C.F.R. § 4.114, DC 7319. Pursuant to DC 7346 for hiatal hernia, a 10 percent disability rating is warranted for two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent evaluation is warranted for persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal, arm, or shoulder pain, productive of considerable impairment of health. The maximum 60 percent evaluation 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. 38 C.F.R. § 4.114, DC 7346. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 1. Entitlement to a disability rating in excess of 10 percent for service-connected GERD and IBS for the period from December 6, 2016 to December 27, 2019. The Veteran is in receipt of a 10 percent disability rating for his symptoms of GERD and IBS from December 6, 2016 to December 27, 2019. The question for the Board is whether the evidence supports a rating in excess of 10 percent for this period. Under DC 7346-7319, 10 percent is warranted when two or more of the following symptoms are shown: dysphagia, pyrosis, and regurgitation, or accompanied by substernal, arm, or shoulder pain. A 30 percent rating requires a showing of the above symptoms resulting in persistently recurring epigastric distress productive of considerable impairment of health. The Board concludes the evidence supports a rating of 30 percent but no more is warranted for the period following December 6, 2016. The Veteran was provided an esophageal examination in January 2017 for GERD and hiatal hernia conditions. He reported symptoms of heartburn with reflux, dysphagia, nausea, pain in the shoulder, and sleep disturbance caused by esophageal reflux more than four times per year. The Veteran is noted to take two medications twice per day to manage his symptoms. The examiner concluded there was a progression in the Veteran's symptoms but no change in diagnosis was necessary. In his July 2017 appeal to the Board, the Veteran stated he experiences abdominal pain, diarrhea, bloody stool, constipation, indigestion, flatulence, heartburn, coughing, hoarseness, bitter taste, vomiting, and sleep disturbance. See NOD, 7/6/2017. An August 2017 operation to repair his left inguinal hernia shows symptoms consistent with the Veteran's statement and VA treatment throughout this period shows continued treatment and medication for symptoms of GERD and IBS. However, he did not have an esophageal stricture, spasm of esophagus (cardiospasm or achalasia), an acquired diverticulum of the esophagus, or other related pertinent physical findings, complications, conditions, signs or symptoms. In conclusion, the Veteran's GERD and IBS has been manifested by persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal pain, and four or more episodes of esophageal reflux resulting in sleep disturbance from the date of the Veteran's claim, December 6, 2016. Affording the Veteran any benefit of the doubt, the Board finds that the symptoms of his disability were productive of considerable impairment of health. Accordingly, a 30 percent rating, but no more, is appropriate. Specifically, the Board finds that the preponderance of the evidence is against a finding that the disability resulted in material weight loss and hematemesis with moderate anemia or other symptom combinations, productive of severe impairment of health, sufficient to warrant the higher still rating under the DC 7346 criteria. Notably, a 30 percent rating is the maximum rating under the criteria in DC 7319; therefore, a higher rating under that code is not possible. 2. Entitlement to a disability rating in excess of 30 percent for service-connected GERD and IBS for the period following December 28, 2019. The Veteran currently receives a 30 percent disability rating for his GERD and IBS from December 28, 2019, the date of his last VA examination. The question for the Board is whether the evidence shows a rating of 60 percent, the maximum schedular rating allowed, is warranted. The Board's remand instructed the RO to provide the Veteran with separate VA examinations for GERD and IBS conditions. The December 2019 examination report shows his symptoms of GERD include acid reflux, regurgitation, nausea, a burning sensation, and chest pressure. He is noted to be prescribed medication for symptoms of nausea that last from one to nine days and occur more than four times per year. The examiner notes the Veteran experiences frequent episodes of acid reflux and regurgitation and is required to monitor his diet. She further notes the Veteran's sleep is disrupted because he is not able to lie flat due to these symptoms. The examiner concluded there was a worsening of the Veteran's GERD symptoms, but no additional diagnosis was warranted. The Veteran reported IBS symptoms of abdominal pain, cramping, frequent loose stools that alternate with constipation, bloating, bloody stools, and hemorrhoids. He is noted to have more or less constant abdominal distress and the need to wear absorbent material for loose stools. The examiner noted IBS flares cause several watery stools with abdominal cramping lasting three to four days, alternating to days of constipation with abdominal bloating and discomfort. She indicated the Veteran is not able to take long trips or drive long distances as he's required to make multiple stops. The Veteran also reported he was no longer able to perform his duties as a schoolteacher due to these symptoms and the frequency of bathroom breaks. The December 2019 examiner concluded the Veteran's IBS symptoms were equally as disabling as his GERD. She noted the Veteran's need for absorbent material to prevent fecal leaks at the age of 53 and emphasized the combination of his symptoms impact his daily life and ability to function. Based on this opinion, and the medical evidence in support of this conclusion, the Board finds the Veteran's GERD and IBS are equally disabling and afford him the highest rating possible. As such, the evidence confirms the Veteran's symptoms have worsened such that a higher rating of 60 percent under DC 7346 is warranted. In particular, regular VA treatment shows frequent complaints of melena, or bloody stools, resulting in loose stools and leakage with activity or flatulence. Treatment in January 2020 confirms increased instances of fecal leakage, necessitating the use of incontinence briefs, and subsequent follow-up visits show continued diarrhea, rectal bleeding, and lower abdominal pain. Additionally, the Veteran is prescribed several medications to control his nausea, vomiting, and heartburn for GERD, and bowel regulation for IBS. Of note, a higher rating may not be denied on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Here, the evidence indicates the Veteran's symptom severity has been mitigated by the use of daily prescription medication since at least 2012. A May 2012 VA examination indicates the Veteran experienced severe heartburn that was improved with the use of prescription medication and he reported symptoms of IBS were improved with the use of prescription medication. As the criteria does not explicitly contemplate the effect of medication, and the Veteran's symptoms are shown to be ameliorated by the use of the prescriptions, the evidence weighs in favor of a finding the Veteran's symptoms result in severe functional impairment of health. The Board has considered evaluating the service-connected disability under other possibly applicable diagnostic codes but find none that would grant the Veteran a higher disability rating. 38 C.F.R. § 4.114; See Butts v. Brown, 5 Vet. App. 532, 538 (1993); see also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Accordingly, since December 28, 2019, the Veteran's GERD and IBS disabilities manifested in persistent pain, vomiting, melena, pyrosis, dysphagia, bloating, fecal leakage, and alternating diarrhea and constipation, and near constant abdominal distress resulting in a symptom combination productive of severe impairment of health corresponding to the criteria for a 60 percent rating under DC 7346-7319. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.N. Chapman, 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.