Citation Nr: 21010220 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 10-10 444 DATE: February 24, 2021 ORDER An initial rating of 60 percent for the entire period on appeal for Crohn’s disease with gastroesophageal reflux disease (GERD) is granted. FINDING OF FACT Throughout the entire appeal period, the Veteran’s symptoms of Crohn’s disease with GERD would, absent the ameliorating effects of medication, more nearly approximate severe with numerous attacks a year and malnutrition, with health only fair during remissions. CONCLUSION OF LAW The criteria for an initial rating of 60 percent for the entire period on appeal, but no higher, for the Veteran’s Crohn’s disease with GERD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.27, 4.114, Diagnostic Code (DC) 7323-7346.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1999 to November 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in July 2013, April 2016, August 2017, and most recently in March 2018, at which times it was remanded for further development. In August 2012, the Veteran testified before a Veterans Law Judge who has since retired. In keeping with Board policy, the Veteran was sent a letter in December 2020 explaining that he has the option to give testimony before another Veterans Law Judge, or if he did not reply to the letter his claim would proceed to adjudication. He did not reply, and the Board will, therefore, proceed with adjudication of the issue. A transcript of that hearing has been associated with the virtual file and reviewed. Increased Rating 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 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Additionally, staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Id. at 126-27; Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). An initial rating of 60 percent for the entire period on appeal for Crohn’s disease with GERD The Rating Schedule states that there are diseases of the digestive system 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 co-existing diseases in this area do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding. 38 C.F.R. § 4.113. Thus, ratings under DCs 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. In this case, the Veteran is service connected for Crohn’s disease with GERD, rated as 30 percent disabling prior to January 22, 2009, 60 percent from January 23, 2009 to June 15, 2009, and 30 percent from June 16, 2009. 38 C.F.R. § 4.114, DC 7323-7346. The Board notes that Crohn’s disease and GERD are coexisting abdominal conditions and disorders of the digestive system under 38 C.F.R. §§ 4.113 and 4.114. 38 C.F.R. § 4.113 requires that since certain diseases of the digestive system produce a common disability picture, specifically, ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, they must be evaluated together in order to avoid pyramiding (evaluating the same disability under various diagnoses). See 38 C.F.R. § 4.2. 38 C.F.R. § 4.114 provides that when a single evaluation is assigned, it should reflect the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. In this case, as Crohn’s disease is the predominant disability, both Crohn’s disease and GERD are required to be rated together under 38 C.F.R. §§ 4.113 and 4.114. Under DC 7323, a 30 percent rating is warranted for moderately severe ulcerative colitis with frequent exacerbations. A 60 percent rating is warranted for severe ulcerative colitis with numerous attacks a year and malnutrition, the health only fair during remissions. A 100 percent rating is warranted for pronounced ulcerative colitis resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess. The words “slight,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. 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. Under DC 7346, a 30 percent rating is warranted where there is 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 contemplates a level of impairment which includes symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. *** The Veteran contends that his disability is more severe than the initial 30 percent rating assigned due to the frequency of his symptoms. These include daily diarrhea, nausea, cramping one to three times a week, and the frequency of exacerbations.   Service treatment records dated in January 2008 show that he complained of nausea, cramps, and diarrhea. In May 2008 he was documented to have a history of belching, abdominal pain and diarrhea. His weight was 165 pounds. Private treatment records dated in January 2009 noted the Veteran presented with a three-week history of diarrhea and that he reported a 25-pound weight loss over the previous three weeks. The principal final diagnosis was bacterial enteritis, unspecified. The Veteran underwent a VA examination in June 2009. He was diagnosed with inflammatory bowel disease/Crohn’s disease and GERD. He reported taking that in January 2009 he had a severe bout that caused him to lose forty-five pounds. He was given medication and his disorder improved with no side effects. His symptoms of abdominal pain and continuous diarrhea had resolved. He reported occasional firm or loose stools. He had no abdominal pain, no diarrhea, no constipation, no fevers or chills, no vomiting, and no nausea. His appetite was normal, and he had regained his weight to ten pounds above his baseline weight of 170 pounds. It was noted that he had a good response to his oral medication. He also complained of heartburn about three times per week, took medication about once a week, and he took Tums tablets about two to three times a day. He had no associated odynophagia or dysphagia. VA treatment records show that in December 2010, May 2011, and June 2011 the Veteran had weight fluctuations. He reported some bloody diarrhea and bowel movements from two to seven times daily with at least one flare-up. He had no cramping, abdominal pain, or joint pain. In April 2012, he had been off medication due to noncompliance and reported a flare-up of cramping, weight loss, and diarrhea. This was resolved by May 2012 with medication. In October 2012, it was noted that he had a history of noncompliance with his medication. He had bowel movements once daily to every other day and was doing better overall. Biopsies showed a mildly active disease. At his August 2012 Board hearing, the Veteran testified that his symptoms varied with good and bad months. At that time, he experienced bowel movements three to six times a day that were not solid and he had occasional cramping. He reported that in 2008 to 2009, he lost between thirty-five to fifty pounds, but he did not suffer anemia or have a liver abscess. He had to change his diet for his GERD symptoms. At the time he described himself as being healthy. He watched his diet and exercised. He was on daily medication. Due to his symptoms he had frequent episodes of urgency to use the bathroom that interfered with his daily life, including when he was at school. Another medical opinion was obtained in September 2013. The clinician indicated that the Veteran's records showed a history of non-compliance with the medications for Crohn's which resulted in exacerbations. Since November 2008, there had been two episodes with loss of weight. The exacerbations with weight loss were documented as moderate disability (i.e. with infrequent exacerbations). Regarding GERD, the clinician opined that there was no indication that it 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. Nor was it manifested by persistently recurrent epigastric distress with dysplagia, pyrosis, or regurgitation, accompanied by substernal arm or shoulder pain, productive of considerable impairment of health. In medical treatment notes from December 2014, it was noted that the Veteran had a history of noncompliance with medication and he reported having a flare-up the previous month. Overall, his symptoms had significantly improved. He had about one to three loose bowel movements without blood. He did not have melena, pain, fever, nausea, or emesis. His Crohn’s disease was stable with no acute flare. In September 2015, he denied any recent flare-ups. He reported occasional episodes of loose stools and mild abdominal pain related to dietary changes, though these were infrequent. He denied blood in stool, melena, cold intolerance, and weight changes. In May 2018, the Veteran reported not taking medication for over a year. He had increased stools without abdominal pain or weight loss and recent flare-up of gout. In July and August 2018, the only manifestation of his Crohn’s disease was two to four loose stools daily without blood and with some post-prandial pain. He was otherwise asymptomatic. In August 2019, he reported having two to five loose bowel movements daily. Colonoscopy results indicated mild to moderate Crohn’s colitis. The Veteran was afforded VA examinations for his Crohn’s disease with GERD in October and November 2019. Regarding his GERD symptoms, he reported intermittent heartburn that was controlled with over the counter antacids. His primary complaint related to his Crohn’s disease. Regarding his Crohn’s symptoms, he had anemia, daily diarrhea, intermittent nausea, and cramping about once per week depending on his diet. He took medication daily. He had seven or more episodes of exacerbations in the past year. He did not have weight loss, malnutrition, serious complications, or other general health effects. In a November 2019 addendum, the examiner reviewed the Veteran’s history of his Crohn’s disease with GERD. It was noted that he had stable periods with multiple exacerbations over the years resulting in weight loss, bouts of hypokalemia and hyponatremia due to dehydration, elevated liver function studies, and low vitamin D levels. He was on immunomodular therapy for suppression for many years with stable periods mixed with exacerbations that were controlled with medication and diet. He had side effects of his medication regimen such as gout that made medication management more difficult and this led him to start and stop taking his medication. The Veteran had chronic diarrhea, abdominal pain, and multiple scarring from ulcerations in several areas of intestines. While he had multiple exacerbations of Crohn’s disease, he had not had a major disability such as malnutrition or anemia due to the disease. The examiner determined that the Veteran’s disability was moderately severe due to frequent exacerbations that caused dehydration, weight loss, hypokalemia, and hyponatremia. Frequent colonoscopies showed worsening ulcerations in various areas of the colon and symptoms such as multiple bowel movements per day and abdominal pain had not improved. *** Based on the above, the Board finds the Veteran’s service-connected Crohn’s disease with GERD most closely approximates a 60 percent rating for the entire period on appeal. Significantly, "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). In other words, the Board cannot consider the ameliorative effects of medication unless medication is referenced in the applicable diagnostic code.   In this case, the evidence of record fairly shows that, absent the ameliorating effects of medication, the Veteran’s Crohn’s disease with GERD would manifest in severe symptoms with numerous attacks a year and malnutrition, with health only being fair when the disease is in remission. Throughout his medical history, the Veteran’s symptoms increased when he did not take his medication, including a severe reaction in January 2009. The November 2019 examiner noted that he had stable periods mixed with exacerbations that were controlled with medication and diet. Notably, he also had side effects of his medication regimen such as gout that made medication management more difficult that led him to start and stop taking his medication. Consequently, the Board finds that 60 percent rating under DC 7323 is warranted. The Board has also considered whether the Veteran’s Crohn’s disease with GERD warrants a 100 percent rating under DC 7323. While the Veteran was noted to have anemia in the November 2019 examination, there is no evidence of marked malnutrition, general debility nor a serious complication such as a liver abscess. A higher rating is not available under the alternative Diagnostic Codes 7346 (Hernia hiatal), because that code has a maximum rating of 60 percent. Consequently, the symptoms did not more nearly approximate the criteria for a rating higher than 60 percent under DC 7323 or 7346. (Continued on the next page)   For the foregoing reasons, the evidence is thus at least evenly balanced as to whether the Veteran more nearly approximates the criteria for a 60 percent rating under DC 7323-7346 over the entire period on appeal. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to an increased, schedular 60 percent rating for Crohn’s disease with GERD is warranted. 38 C.F.R. §§ 4.3, 4.7. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cruz, 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.