Citation Nr: 21010877 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-07 242 DATE: February 25, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for gastroesophageal reflux disease (GERD) with gastritis (now rated as irritable bowel syndrome, GERD with gastritis) is denied. FINDING OF FACT The Veteran’s GERD with gastritis and irritable bowel syndrome has not manifested in symptoms productive of severe impairment of health, such as material weight loss and hematemesis or melena with moderate anemia, nor in severe hemorrhages or large ulcerated or eroded areas at any point during the appeal period. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for GERD with gastritis and irritable bowel syndrome have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.114, Diagnostic Codes 7307, 7319, 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from July 2002 to July 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. Additional, relevant VA treatment records were added to the record since the most recent supplemental statement of the case in February 2020. In February 2021, the Veteran submitted a waiver of initial review by the AOJ. Entitlement to an initial rating in excess of 30 percent for GERD with gastritis (now rated as irritable bowel syndrome, GERD with gastritis). The Veteran seeks a higher rating for his GERD. For the reasons that follow, the Board finds that a higher rating is not warranted. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. With regards to disabilities of the digestive system, under 38 C.F.R. § 4.114, 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. By way of history, the Veteran was granted service connection for GERD in a May 2016 Board decision, and the RO assigned an initial 10 percent evaluation pursuant to Diagnostic Code 7399-7346 in a September 2016 rating decision. Subsequently, the Board also granted service connection for gastritis in March 2018, and the RO combined the Veteran’s gastritis with his disability rating for GERD as VA regulations prohibit separate ratings for GERD and gastritis. See 38 C.F.R. § 4.114. Most recently, service connection for irritable bowel syndrome (IBS) was granted in a September 2020 rating decision. As separate ratings for GERD and IBS are prohibited, the RO found that the Veteran’s IBS was the predominate disability and awarded an increased 30 percent rating under diagnostic code 7346-7319 since the grant of service-connection for GERD. Thus, the Veteran has been receiving a single rating of 30 percent for his GERD with gastritis and IBS for the entire appeal period. A 30 percent rating is the highest schedular rating available under Diagnostic Code (DC) 7319 (irritable colon syndrome). Thus, the remaining inquiry is whether a rating higher than 30 percent may be assigned under DC 7346 or DC 7307. Under DC 7346, a 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal 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 7307 (gastritis), a 30 percent rating contemplates chronic gastritis with multiple small eroded or ulcerated areas, and symptoms. A maximum 60 percent rating contemplates chronic gastritis with severe hemorrhages, or large ulcerated or eroded areas. 38 C.F.R. § 4.114, DC 7307. The Board may not deny entitlement to a higher rating due to relief provided by medication when those effects are not specifically contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012); see also 38 C.F.R. § 4.114, DC 7346, 7307 (containing no reference to the effects of medication). Turning to the evidence of record, an April 2013 VA treatment record shows that the Veteran reported that he began experiencing abdominal pain and vomiting at 2 a.m., along with other symptoms. He reported that these episodes occur twice a year and last for a few hours. A May 2013 VA treatment record notes mild gastritis. The Veteran underwent a VA examination for his GERD in May 2014. The Veteran reported that he did not take his medication every day. At the examination, the following symptoms were noted: persistently recurrent epigastric distress, dysphagia, reflux, nausea, vomiting, and material weight loss. The examiner noted that the nausea and vomiting occurred four or more times per year and lasted less than a day. With regards to material weight loss, the examiner noted that the Veteran’s baseline weight was 225 and his current weight was 190. The examiner also noted that the Veteran’s gastrointestinal symptoms impacted his work due to pain and discomfort, passing gas, and abdominal distension. At an April 2016 Board hearing for the issue of service connection for GERD, the Veteran reported experiencing heartburn constantly. He also reported experiencing episodes approximately two to three times a year where he would have vomiting, diarrhea, and excruciating pain. An April 2017 VA treatment record shows that the Veteran went to the emergency room for intermittent abdominal pain. A June 2017 VA treatment record shows that the Veteran denied nausea, vomiting, and dysphagia. He reported abdominal pain used to occur in the middle of the night but started occurring randomly during the day. He reported that the pain occurs two to three times a week, but he could go several weeks without experiencing any pain. The Veteran underwent another VA examination in October 2018. At the examination, the following symptoms were noted: persistently recurrent epigastric distress, dysphagia, reflux, regurgitation, substernal pain, sleep disturbance, nausea, and vomiting. The examiner noted that the Veteran’s sleep disturbance, nausea, and vomiting occurred four or more times per year and lasted 10 days or more. The examiner also noted that the Veteran’s symptoms result in fatigue and pain that cause difficulty in getting through the workday. In an October 2018 Statement in Support of Claim, the Veteran reported that his GERD had been so bad that he had three emergency room visits in the last nine months which caused him to have to leave work. He also reported being on a restricted diet as well as difficulty sleeping due to reflux. He noted that because of his symptoms, his relationship with his wife was diminished and his performance at work had gone down. A January 2020 VA treatment record shows that the Veteran denied nausea and vomiting. Occasional red blood from the rectum was noted. At the July 2020 Board hearing, the Veteran testified that he must take his medication every day. He also reported that he wakes up several times a week in the middle of the night due to regurgitation and will experience regurgitation during the day approximately three to four times a week. He also testified that he has acid reflux daily and about once a week it will get so bad that he has to stop what he is doing and lay flat on the floor for approximately an hour or two. Difficulty swallowing also was reported, along with heartburn and shoulder pain. The Veteran also testified to experiencing flare-ups of his GERD four to five times a week, chest pain during the flares, vomiting during or after a flare, and irritation of his throat due to regurgitation. The Veteran reported experiencing sleep impairment due to his GERD symptoms. With regards to his employment, the Veteran reported that his GERD symptoms have affected his ability to be on call at all times, which is important in his job as a federal agent. He also testified that in the past year there had been several times where he left work and went home due to his symptoms. He also reported that he had left work on approximately two occasions in the past two years to go to the emergency room at the VA because of his GERD symptoms. VA treatment records throughout the appeal period generally show that the Veteran denied vomiting, nausea, weight loss, melena, and hematemesis. VA examination in August 2020 did not reference increased impairment. Based on a review of the evidence of record, the Board finds that a rating in excess of 30 percent is not warranted under DC 7346. During the appeal period, the Veteran’s GERD has manifested in symptoms such as persistently recurrent epigastric distress, reflux, regurgitation, substernal pain, heartburn, dysphagia, sleep impairment, and occasional vomiting productive of considerable impairment of his health. At no point during the appeal period has the Veteran experienced hematemesis or melena with moderate anemia, nor any other symptom combinations productive of severe impairment of his health. While the Veteran has reported experiencing pain and occasional vomiting, the Board finds such symptoms are not productive of severe impairment of health as is contemplated by the 60 percent rating criteria. VA treatment records consistently show that the Veteran has been well nourished, and he has never been hospitalized for his GERD symptoms. Additionally, the record is devoid of any evidence of anemia. The Board acknowledges that the May 2014 examiner noted material weight loss, a symptom enumerated in the 60 percent rating criteria. However, the Board finds that the evidence of record indicates that the Veteran has not experienced such symptom. While “material weight loss” is not defined under DC 7346, “substantial weight loss” is defined under 38 C.F.R. § 4.112 as a loss greater than 20 percent of the individual’s baseline weight, sustained for three months or longer. The terms “substantial” and “material” are considered synonyms. See Merriam Webster’s Thesaurus (online) (2021) (listing “material” as a synonym for “substantial”). Accordingly, the Board finds it appropriate to use the definition provided under 38 C.F.R. § 4.112 to define “material” in DC 7346. A review of the record shows that the Veteran’s weight has fluctuated throughout the appeal period from approximately 190 pounds to 210 pounds. Using the definition provided under 38 C.F.R. § 4.112 by analogy, the Veteran’s weight loss of, at most, 35 pounds, is not considered substantial or material. Additionally, VA treatment records show that the Veteran has consistently denied weight loss and such symptom also was not reported by the October 2018 examiner. The Board has also considered the flare-ups the Veteran has described. However, the evidence does not indicate that the flare-ups the Veteran experiences are productive of severe impairment of his health. There is no evidence that these episodes have caused the Veteran to experience anemia, malnourishment, or be hospitalized for treatment. Thus, the Board finds that a 60 percent rating under DC 7346 is not warranted even with consideration of the Veteran’s flares. Furthermore, while the Veteran testified at the hearing that he must take his medication every day, the evidence of record does not indicate that the Veteran experiences symptoms productive of severe impairment of health, such as anemia and malnourishment, even without his medications. At the hearing, the Veteran indicated that if he does not take his medication that his symptoms occur sooner/more frequently but not that they are more severe without his medications. See July 2020 hearing transcript (reporting that if he misses his medications, he feels the effects within three to six hours). Additionally, the Veteran reported at the May 2014 VA examination that he did not take his medication daily, and yet he did not experience any anemia, malnourishment, or any hospitalizations. Moreover, while a January 2020 VA treatment record noted occasional blood from the rectum, the description of it as “red blood” indicates that such was not melena (defined as the passage of dark-colored feces stained with blood pigments or with altered blood) but rather hematochezia (defined as presence of blood in the feces). See Dorland’s Illustrated Medical Dictionary (31st ed. 2007). Additionally, the evidence of record indicates that such symptom is due to the Veteran’s IBS and thus contemplated in his current 30 percent rating. See August 2020 VA examination. The Board also acknowledges that the Veteran has reported experiencing irritation of his throat due to his regurgitation. However, the Veteran is already service connected for Barrett’s esophagus and such symptom is contemplated by his noncompensable rating for that disability. The Board also has considered whether a rating higher than 30 percent is available under DC 7307 for gastritis. However, there is no evidence that the Veteran experiences severe hemorrhages or large ulcerated or eroded areas. The Board also notes that the Veteran has reported experiencing difficulties in performing his job due to his GERD symptoms. However, despite these difficulties, the evidence of record indicates that he has maintained full-time employment throughout the appeal period. The evidence of record also does not indicate that such is marginal employment. While the Veteran reported that he has at times been placed on restricted duties due to his GERD symptoms, such accommodations do not rise to the level of marginal or protected employment. Furthermore, the evidence of record does not indicate that the Veteran has missed a substantial amount of time from work, such as weeks or months, due to his GERD symptoms. Rather, the Veteran has indicated he has reported that he has left work on two or three occasions due to his GERD symptoms. See July 2020 hearing transcript. In light of the foregoing, the Board finds that the issue of entitlement to a TDIU has not been raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). While the Board is sympathetic to the difficulties he experiences at work, his current disability rating compensates him for the impairment in earning capacity. In sum, the preponderance of the evidence is against finding that the Veteran’s GERD symptoms have been productive of severe impairment of health or severe hemorrhages or large ulcerated or eroded areas. As such, a higher, 60 percent rating is not warranted. (Continued on the next page)   As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for a rating in excess of 30 percent must be denied. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, 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.