Citation Nr: 21011430 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 17-24 500 DATE: March 1, 2021 ORDER Entitlement to a 60 percent disability rating for irritable bowel syndrome (IBS) to include gastroesophageal reflux disease (GERD) is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT The Veteran’s IBS with GERD are productive of pain, vomiting, nausea, and other symptom combinations productive of severe impairment of health. CONCLUSION OF LAW The criteria for a 60 percent disability rating for IBS with GERD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.113, 4.114, Diagnostic Code (DC) 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Air Force (USAF) from March 1997 to March 2001, from October 2001 to January 2002, from May 14, 2011 to May 30, 2011, and from September 2015 to May 2016. After May 2016, the Veteran had periods of active duty for training and inactive duty training with the California Army National Guard for periods of late 2016 and throughout 2017. This appeal comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) February 2017 rating decision of the Agency of Original Jurisdiction (AOJ). In May 2020 the Veteran appeared before the undersigned Veterans’ Law Judge at a Board virtual hearing. A transcript of the hearing has been reviewed by the Board, and has been associated with the claims file. 1. Entitlement to a disability rating in excess of 30 percent for IBS with GERD The Veteran is currently in receipt of a 30 percent disability rating for his gastrointestinal disability, characterized as IBS with GERD. The Board notes that in some places in the Veteran’s file his IBS is referred to as “irritable colon.” For the purposes of this decision only, the Board will treat references to IBS and irritable colon interchangeably. The Veteran alleges that his symptoms are severe enough that a disability rating in excess of 30 percent is warranted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating 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. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). In all cases, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr, at 308 (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the “authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence”). The Board has considered all evidence of record as it bears on the issues before it. See 38 U.S.C. § 7104 (a); 38 U.S.C. § 5107 (b). Although the Board has an obligation to provide reasons and bases supporting these decisions, there is no need to discuss, in detail, the extensive evidence of record. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran’s appeal. The Veteran’s IBS and GERD are currently rated under the provisions of Diagnostic Codes (DCs) 7346-7319. 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. Regulations provide that when a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely-related disease or injury, in which both the functions affected and the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. DC 7346 for hiatal hernia, used for rating GERD, provides that 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 production of severe impairment of health. A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 10 percent rating is warranted with two or more of the symptoms for the 30 percent rating of less severity. 38 C.F.R. § 4.114 , DC 7346. DC 7319 for irritable colon syndrome, to include spastic colitis, mucous colitis, etc., provides that a 30 percent rating is warranted for severe symptoms; diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. A 10 percent rating is warranted for moderate symptoms; frequent episodes of bowel disturbance or abdominal distress. A 0 percent rating is warranted for mild symptoms; disturbances of bowel function with occasional episodes of abdominal distress. 38 C.F.R. § 4.114 , DC 7319. Regarding coexisting abdominal conditions, VA regulation recognizes that there are diseases of the digestive system, particularly within the abdomen, 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. 38 C.F.R. § 4.113. Consequently, certain coexisting diseases in this area do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in 38 C.F.R. § 4.14. Id. Rather, 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. Specifically, ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other; as noted, a single rating will be assigned under the diagnostic code which rates the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants elevation. 38 C.F.R. § 4.114. As such, the Board cannot assign separate ratings for IBS and hiatal hernias under their respective DCs, even if pyramiding were not an issue. At his May 2020 Board hearing the Veteran, through his representative, raised the possibility of the applicability of DCs 7203 (stricture of the esophagus) and 7330 (intestinal fistulas). Under 7203, a 30 percent rating is warranted when there is “moderate” stricture of esophagus, a 50 percent rating is warranted when there is severe stricture such that only a liquid diet is required, and an 80 percent rating is warranted when a liquid-only diet is required along with “marked impairment of general health.” The Board notes that the Veteran is not restricted to a liquid-only diet, and as such a rating in excess of 30 percent under DC 7203 is not warranted. Under DC 7330 (for persistent fistula of the intestine or after attempt at operative closure), a 30 percent rating is warranted when there is slight, infrequent fecal discharge. A 60 percent rating is warranted when there is constant or frequent fecal discharge, and a 100 percent rating is for cases involving copious and frequent fecal discharge. The Board notes that a separate rating under DC 7330 may be given, as it is not precluded by §§ 4.113 and 4.114. However, the rules regarding pyramiding would still apply. A September 2003 upper endoscopy found that the Veteran’s abdominal issues were productive of epigastric pain and distress, dyspepsia, dysphagia, heartburn, chest pain, and nausea with vomiting. The endoscopy also found a “medium” hiatal hernia. It was recommended at the time that the Veteran take non-steroidal anti-inflammatory drugs (NSAIDs) and medication such as Prilosec for his conditions “indefinitely.” The Veteran’s medical treatment records since his 2003 endoscopy show a history of complaints for abdominal issues, including pain, nausea, bloody stool, diarrhea, and episodes of epigastric distress. A November 2016 VA examination found that the Veteran’s abdominal conditions caused “occasional” episodes of abdominal distress, which the examiner noted equated to “attacks 1-2 times a month when he has to call in sick to work because of the IBS.” The Veteran experienced dysphagia, reflux, substernal pain, sleep disturbances, and vomiting due to his GERD. Furthermore, at the time, the Veteran’s bowel movements “alternated” between diarrhea and constipation, which occurred “every 2-3 days if not taking fiber.” The examiner also found that the Veteran had “pressure in the lower bowels all the time.” The Veteran’s abdominal conditions were such that if he were “having an episode” it would impact his ability to work, to the point where he’d either have to “stay in the shop or call in sick and stay home.” At his May 2020 Board hearing the Veteran testified that he takes medication every day to control his symptoms. While the medication helps with his heartburn, there is “always stomach pain,” and his stomach is “constantly churning and hurting.” According to the Veteran, stomach concerns are “always” an issue for him. The Veteran has taken to carrying a portable bag of sanitary wipes with him, as his fecal incontinence gives him “roughly 30 seconds” warning before he is “having an accident.” The Veteran stated that these incidents happen “two to four days a week.” According to the Veteran, his IBS has worsened, since around 2018 he began experiencing incontinence with diarrhea. While at the time of his hearing the Veteran was not having to use absorbent materials, the Veteran stated that he had talked to his physician the day before the hearing about the possibility, given the progression of his conditions. While the Veteran has not experienced malnutrition or anemia due to his conditions, he has had to alter his diet and behavior in order to maintain his weight. In addition to supplements, the Veteran takes daily medication as noted above. If the Veteran does not take his medication, he starts “choking on food and water.” Due to his conditions, the Veteran’s esophagus requires surgical expansion periodically. As discussed above, a 60 percent rating under DC 7346 requires either evidence 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 does not have hematemesis or melena, nor does he have anemia. And as noted above, the Veteran has not undergone “material weight loss” due to his conditions. See 38 C.F.R. § 4.112. However, the medical evidence clearly shows that the Veteran experiences abdominal pain, dysphagia, substernal pain, nausea with vomiting, choking, sleep disturbance, reflux, and incontinence. Furthermore, the Veteran’s abdominal conditions drastically interfere with his professional and personal life. Therefore, the Board finds that the totality of the Veteran’s symptoms are productive of “other symptom combinations productive of severe impairment of health,” and a 60 percent rating under DC 7346 is approximated. This is the highest possible rating under DC 7346. A rating under DC 7330 is not precluded by §§ 4.113 and 4.114. However, the Board finds that assigning any rating under DC 7330 would constitute pyramiding under 38 C.F.R. § 4.14, as both DCs 7346 and 7330 in this case contemplate the same symptoms as outlined above and as the Board has found such symptoms to satisfy the requirement of “other symptom combinations productive of severe impairment of health” in order to approximate the next higher 60 percent rating. The Board notes that at his May 2020 hearing, the Veteran requested possible extraschedular consideration. The Board does not find extraschedular consideration appropriate in this case, however, as the Veteran’s symptoms and conditions are contemplated by the rating schedules, as discussed above. Therefore, the Board finds that the conditions necessary for a 60 percent disability rating under DC 7346 have been met. 38 C.F.R. § 4.114, DC 7346. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, 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.