Citation Nr: 21076142 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 16-57 574 DATE: December 22, 2021 ORDER Entitlement to an initial rating of 60 percent for irritable bowel syndrome (IBS), to include gastroesophageal reflux disease (GERD), is granted. FINDING OF FACT Throughout the period on appeal, the Veteran's IBS, to include GERD, has been manifested by symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. CONCLUSION OF LAW The criteria for an initial rating of 60 percent for IBS, to include GERD, throughout the appeal period have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.113, 4.114, Diagnostic Codes 7346-7319. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 1996 to January 2005, to include service in the Persian Gulf. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2015 rating decision by Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in June 2021 for additional development. In a September 2021 rating decision, the RO granted service connection for GERD and incorporated it with the rating for IBS as it is a coexisting digestive disease. See 38 C.F.R. §§ 4.113, 4.114. Because the RO expanded the definition of the Veteran's service-connected gastrointestinal disability, the Board will adjudicate the Veteran's entitlement to a higher rating for his gastrointestinal disability, which now includes IBS and GERD. See Baughman v. Derwinski, 1 Vet. App. 563 (1991). Increased Rating Entitlement to an initial rating in excess of 10 percent for IBS, to include GERD. Disability evaluations are determined by the application of a schedule of ratings, which 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. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.2. The Veteran contends he is entitled to a higher rating for service-connected IBS. He is currently rated at 10 percent disabling for IBS, effective March 27, 2015, under Diagnostic Code (DC) 7319. In September 2021, the RO also granted service connection for GERD, effective March 27, 2015, and incorporated the GERD rating into the existing 10 percent rating for IBS. The Board notes that there is no specific diagnostic code for GERD, the RO has rated the Veteran's GERD and IBS by analogy under DCs 7346-7319, for irritable colon syndrome. Based on this rating decision, the Board has finds that GERD is associated with the Veteran's service-connected IBS; thus, the Board must rate the expanded gastrointestinal disability. See Baughman v. Derwinski, 1 Vet. App. 563 (1991). Under DC 7346, a 10 percent rating is warranted for a hernia hiatal with two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is warranted if symptomatology equates to a 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. 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. 38 C.F.R. § 4.114, DC 7346. Under DC 7319, a 10 percent rating is warranted for moderate irritable colon syndrome with frequent episodes of bowel disturbances with abdominal distress. 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, DC 7319. Notably, 38 C.F.R. § 4.114 provides that 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. After review of the evidence of record, the Board finds that an initial 60 percent rating throughout the appeal period is warranted for the Veteran's IBS and GERD under DC 7346, as it most nearly approximates the Veteran's combined gastrointestinal symptoms. Medical records and lay statements of the Veteran include reported symptoms alternating episodes of severe diarrhea and constipation; visiting the bathroom up to 9 times per day; frequent to daily episodes of sharp and stabbing pain in his abdomen; severe heartburn; and vomiting during his sleep if he does not take prescription medication for GERD. See VA treatment records dated June 2016, July 2016, and April 2017; November 2016, VA Form 9; July 2016, Correspondence; June 2016, Notice of Disagreement (NOD); Private treatment records dated January 2016 and May 2016. The Veteran was afforded VA examinations in May 2015 and September 2021 to evaluate IBS and GERD. The Veteran reported having to visit the restroom up to 10 times per day, diarrhea with loose and explosive stool up to 9 times per day, some constipation, microscopic to tinged blood in his stool, pyrosis, reflux, regurgitation, sleep disturbance caused by esophageal reflux (4 or more times per year lasting less than one day), and frequent random episodes of abdominal pain (sharp, shooting, and stabbing). The Veteran also reported taking medications for GERD and IBS symptoms; increased stress and anxiety from his service-connected psychiatric disability increases GERD symptoms; and any physical activity triggers GERD symptoms of reflux, regurgitation, and heartburn. Physical examination revealed frequent episodes of abdominal distress and abdominal distension, but no nausea, weight loss attributable to an intestinal condition, malnutrition, hematemesis, melena with moderate anemia, or esophageal stricture. The Board finds the September 2021 VA examination substantially complied with the June 2021 Board remand directives as the VA examiner reviewed the claims file, conducted a physical examination, considered the Veteran's lay statements, and provided clear findings. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stegall v. West, 11 Vet. App. 268 (1999). In light of the above, the Board finds an initial rating of 60 percent for IBS and GERD is warranted. The United States Court of Appeals for Veterans Claims (Court) has held, "the Board may not deny entitlement to a higher rating 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, Diagnostic Codes 7319 and 7346 do not contemplate the effects of medication on the Veteran's gastrointestinal disability. The evidence shows that the Veteran takes separate medications to treat his gastrointestinal symptomatology which includes reflux symptoms, heartburn, regurgitation, sleep disturbances, and vomiting while asleep. Further, the Veteran reported worsening of symptoms as a result of any physical activity, regardless of his diet, and increased stress and anxiety from his service-connected psychiatric disability (rated at 70 percent during the entire period on appeal). In consideration of Jones and § 4.114, the Board finds the combined severity of the Veteran's gastrointestinal symptoms warrants elevation to the next higher evaluation, namely from 30 to 60 percent. Therefore, the Board grants an initial maximum rating of 60 percent under DC 7346 for IBS and GERD throughout the appeal. The Board finds that the Veteran is not entitled to a rating in excess of 60 percent under any other diagnostic code as the evidence does not more nearly approximate an intestine fistula, impairment of sphincter control (to include complete loss of sphincter control), the need for a colostomy, or malignant neoplasms of the digestive system. Indeed, the majority of the Veteran's symptoms, to include vomiting, heartburn, alternating diarrhea and constipation, blood-tinged stool, regurgitation, and abdominal pain/distress, are specifically contemplated by a 60 percent, or lower rating, under DCs 7346 and 7319. All possibly applicable diagnostic codes have been considered in compliance with Schafrath, 1 Vet. App. at 593, but the Veteran could not receive higher and/or additional evaluations for IBS and GERD based on the evidence. See 38 C.F.R. § 4.114. The Board notes that the benefit of the doubt has been applied, where applicable. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Straughn, Shavonne 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.