Citation Nr: 21011830 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 13-29 712 DATE: March 2, 2021 ORDER A rating in excess of 30 percent for gastroesophageal reflux disease (GERD), with irritable bowel syndrome (IBS) as of January 27, 2012, is denied. An initial compensable rating prior to January 7, 2020, and in excess of 10 percent thereafter for allergic rhinitis is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s GERD is manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, sleep disturbances, nausea, and regurgitation, accompanied by substernal arm pain, productive of considerable impairment of health, without vomiting, material weight loss, hematemesis or moderate anemia, or other symptom combinations productive of severe impairment of health, and, as of January 27, 2012, his IBS is severe with alternating diarrhea and constipation, with more or less constant abdominal distress. 2. Prior to January 7, 2020, the Veteran’s allergic rhinitis was not manifested by greater than 50 percent obstruction of nasal passage on both sides, complete obstruction on one side, or nasal polyps. 3. As of January 7, 2020, the Veteran’s allergic rhinitis is manifested by greater than 50 percent obstruction of the nasal passages on both sides, without nasal polyps. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for GERD, with IBS as of January 27, 2012, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.112, 4.113, 4.114, Diagnostic Code (DC) 7346, 7346-7319. 2. The criteria for an initial compensable rating prior to January, 7, 2020, and in excess of 10 percent thereafter for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.97, DC 6522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2008 to September 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In December 2019, the Board remanded the case for additional development. While on remand, an August 2020 rating decision awarded an increased rating of 10 percent for the Veteran’s allergic rhinitis as of January 7, 2020. However, as the Veteran is presumed to seek the maximum available benefit for a disability, and higher ratings for such disability remain available on appeal, such claim remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The case now returns for further appellate review. Increased Ratings 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. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); 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. 1. Entitlement to a rating in excess of 30 percent for GERD, with IBS as of January 27, 2012. The period on appeal begins on June 10, 2011, the date VA received the Veteran’s claim for an increased rating for his GERD, plus the one-year look-back period. See Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Board notes that, as of January 27, 2012, the date service connection was awarded for IBS, such disability is rated with his GERD. Thus, for the appeal period prior to January 27, 2012, the Veteran’s GERD is rated as 30 percent disabling pursuant to DC 7346, which pertains to hiatal hernia, and, as of such date, his GERD with IBS is rated as 30 percent disabling pursuant to DC 7346-7319, the latter of which pertains to irritable colon syndrome. 38 C.F.R. §§ 4.27, 4.114. The Board notes that 38 C.F.R. § 4.113 provides 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. Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title “Disease of the Digestive System,” do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14. Additionally, 38 C.F.R. § 4.114 indicates that ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. Thus, while the Veteran is service-connected for GERD and IBS as of January 27, 2012, separate ratings for such disabilities is prohibited by regulation. DC 7346 provides for a 60 percent rating for hiatal hernia with symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. A 30 percent rating is warranted for 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. DC 7319 provides for a maximum 30 percent rating for severe irritable colon syndrome with diarrhea or alternating diarrhea and constipation, with more or less constant abdominal distress. VA regulations provide that, for purposes of evaluating conditions in § 4.114, the term “substantial weight loss” means a loss of greater than 20 percent of the individual’s baseline weight, sustained for three months or longer; and the term “minor weight loss” means a weight loss of 10 to 20 percent of the individual’s baseline weight, sustained for three months or longer. The term “inability gain weight” means that there has been substantial weight loss with inability to regain it despite appropriate therapy. “Baseline weight means the average weight for the two-year-period preceding onset of the disease. 38 C.F.R. § 4.112. Dysphagia is defined as difficulty in swallowing. Dorland’s Illustrated Medical Dictionary, 587 (31st ed. 2007). Pyrosis is defined as heartburn. Id. at 1587. Hematemesis is defined as the vomiting of blood. Id. at 842. Melena is defined as the passage of dark-colored feces stained with blood pigments or with altered blood. Id. at 1142. Turning to the evidence of record, in July 2010, private treatment records reflect that the Veteran reported mild to moderate intermittent abdominal pain in the epigastric area, but there was no nausea, loss of appetite, vomiting, or diarrhea. The examiner gave an impression of epigastric abdominal pain of unknown cause. At an August 2010 VA examination, it was noted that the Veteran took Prilosec for his GERD. In this regard, while it was found that such disorder was stable, he continued to experience reoccurrence of reflux symptoms. Upon examination, the Veteran’s GERD was noted to be manifested by occasional dysphagia, esophageal distress with occasional substernal pain, pyrosis, and regurgitation. However, the examination did not show, and the Veteran did not report, nausea, vomiting, hematemesis, melena, anemia, or weight loss. A November 2010 VA treatment record reflects that the Veteran denied pyrosis, sour eructation, abdominal pain, dyspepsia, or melena. At a December 2011 VA examination, it was again noted that the Veteran took Prilosec for his GERD. At such time, he reported persistently recurrent epigastric distress, pyrosis, and reflux. However, the examination did not show, and the Veteran did not report, dysphagia, regurgitation, substernal arm or shoulder pain, sleep disturbance, anemia, weight loss, nausea, vomiting, hematemesis, or melena. At a December 2012 VA examination for intestinal conditions, the Veteran was diagnosed with IBS. At such time, he complained of weekly episodes of bloating, cramping, constipation six or seven times a month, diarrhea three or four times a month (lasting 2-3 days), and needing to use the bathroom five or six times a day. The Veteran exhibited symptoms of diarrhea with loose green stool that was watery, alternating diarrhea and constipation twice a week (lasting 2-3 days), weekly episodes of diarrhea (lasting 2-3 days), and abdominal distension. The Veteran did not have anemia, nausea, vomiting, episodes of bowel disturbance with abdominal distress, malnutrition, or weight loss attributable to an intestinal condition (rather, it was noted that he had gained 20lbs since release from active service). In an August 2013 VA treatment record, it was noted that the Veteran reported approximately two weeks of lower abdominal pain, cramping, excess gas, and irritation and, in a December 2013 VA treatment record, it was observed that he complained of some mild persistent abdominal discomfort after a C-scope, as well as frequent diarrhea. In August 2014, it was noted that the Veteran had a history of GERD complicated by acid sour taste in the mouth, regurgitation, burning, hoarse voice, and intermittent dysphagia. At an April 2015 VA examination, the Veteran reported that he had worsening GERD for the last few months requiring an increased dose of medication (Omeprazole, i.e., Prilosec) and a recent trip to the emergency department due to GERD with worsening anxiety and waking with shortness of breath. Additionally, an April 2015 upper endoscopy showed reflux esophagitis. At such time, the examiner found that the Veteran’s GERD resulted in considerable impairment of health due to persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal pain, and sleep disturbance. At a June 2016 VA examination, the Veteran stated that there had been no change in severity of GERD symptoms since the last VA examination, and he continued to treat such disorder with Omeprazole (Prilosec). At such time, his GERD symptoms were noted to include reflux and sleep disturbance. At a February 2017 VA examination, it was noted that he continued to treat his GERD with Omeprazole (Prilosec). The examiner found that the Veteran’s GERD resulted in considerable impairment of health due to persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, substernal pain, sleep disturbance, and nausea. No regurgitation, material weight loss, vomiting, hematemesis, or melena with moderate anemia were noted. In a March 2017 VA treatment record, the Veteran reported nocturnal reflux and abdominal pain. At a July 2017 VA examination, it was noted that the Veteran treated his GERD with Prilosec with good control. At such time, his symptoms were only noted to include pyrosis, without persistently recurrent or infrequent episodes of epigastric distress, dysphagia, reflux, regurgitation, pain, sleep disturbance, material weight loss, nausea, vomiting, hematemesis, or melena with moderate anemia. At a February 2018 VA examination for the Veteran’s intestinal conditions, the Veteran was diagnosed with IBS and chronic diarrhea. He reported taking continuous medication, including atropine and diphenoxylate. The Veteran exhibited symptoms of alternating diarrhea and constipation, and reported frequently having loose stool mixed with hard stool. He stated that he had more diarrhea than constipation. The examiner found that the Veteran had episodes of bowel disturbance with abdominal distress and more or less constant abdominal distress. The Veteran did not have weight loss attributable to an intestinal condition. VA treatment records reflect that, in March 2018, the Veteran reported having GERD symptoms two or three times a week, and four or five diarrhea stools a day. At the August 2018 Board hearing, the Veteran reported experiencing abdominal pain, chest pain, soreness, tenderness, reflux, heartburn, bloating, excessive gas, and alternating constipation with diarrhea. He also stated that he had fluctuating weight, and would vomit after taking vitamins that did not agree with him. In a February 2019 VA treatment record, the Veteran reported IBS with mixed bowel habits with abdominal pain and alternating constipation and diarrhea. In April 2019, he complained of loose bowel movements three or more times a day on seven occasions over the past month. At an October 2018 VA stomach examination, the Veteran reported that, despite taking medication, he continued to experience epigastric burning and reflux. He also reported recurring episodes of symptoms that were not severe, monthly abdominal pain, and nausea. There was no anemia, weight loss, vomiting, hematemesis, or melena. VA treatment records dated in February 2019 and April 2019 reflect that the Veteran’s IBS results in mixed bowel habits with alternating loose bowel movements and constipation. At a July 2019 stomach examination, the Veteran reported experiencing heartburn, regurgitation, indigestion, and stomach pain and soreness. It was noted that he continued to take Omeprazole (Prilosec) and dietary fiber for his GERD and IBS. The examiner found that the Veteran had recurring episodes of symptoms that are not severe, to include periodic abdominal pain; however, there was no anemia, weight loss, nausea, vomiting, hematemesis, or melena. At an October 2019 VA stomach examination, the Veteran reported abdominal pain, and it was noted that he treated his conditions with Omeprazole (Prilosec), Pantoprazole, and Pepcid. At such time, it was found that he had recurring episodes of severe symptoms with at least monthly periodic abdominal pain and nausea, without anemia, weight loss, vomiting, hematemesis, or melena. It was also noted that he had hypertrophic gastritis, which was described as chronic, with small nodular lesions, and symptoms, and submucosal stomach lesion. While the examiner found that the Veteran’s submucosal stomach lesion was unrelated to his GERD or IBS, he opined that it was at least as likely as not that the Veteran’s gastritis, diagnosed in 2018, is due to his GERD. Based on the foregoing, the Board finds that, for the entire appeal period, the Veteran’s GERD was manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, sleep disturbances, nausea, and regurgitation, accompanied by substernal arm pain, productive of considerable impairment of health, without vomiting, material weight loss, hematemesis or moderate anemia, or other symptom combinations productive of severe impairment of health, and, as of January 27, 2012, his IBS is severe with alternating diarrhea and constipation, with more or less constant abdominal distress. Specifically, the record reflects that, throughout the appeal period, the Veteran’s GERD has been found to result in persistently recurrent epigastric distress with dysphagia, pyrosis, sleep disturbances, nausea, and regurgitation, accompanied by substernal arm pain, without vomiting, hematemesis, melena, anemia, or material weight loss. In this regard, the Board notes that, while the Veteran reported at his August 2018 hearing that he would vomit after taking vitamins that did not agree with him and experienced weight fluctuations, such symptoms have not been attributed to his GERD, and his treatment records and VA examinations fail to reflect that such disability is manifested by vomiting or material weight loss, the latter of which is defined by VA regulations. 38 C.F.R. § 4.112. Moreover, VA examiners have consistently found that the Veteran’s GERD results in, at most, considerable, rather than severe, impairment of health. Consequently, a rating in excess of 30 percent is not warranted under DC 7346. The Board also finds that, as of January 27, 2012, the date of service connection, the Veteran’s IBS is severe with alternating diarrhea and constipation, with more or less constant abdominal distress, which is commensurate with a 30 percent rating under DC 7319; however, as indicated previously, VA regulations prohibit the assignment of separate ratings under DCs 7319 and 7346. Further, a 30 percent rating under DC 7319 is the maximum schedular rating and, thus, a higher rating under such DC is not warranted. The Board further observes that, as reflected by the October 2019 VA examination, the Veteran’s GERD results in hypertrophic gastritis, which was described as chronic, with small nodular lesions, and symptoms. In this regard, DC 7307 provides that chronic hypertrophic gastritis with small nodular lesions and symptoms warrants a 10 percent rating. In order to warrant a 30 percent rating, hypertrophic gastritis must be chronic with multiple small eroded or ulcerated areas and symptoms and, to warrant a 60 percent rating, hypertrophic gastritis must be chronic with severe hemorrhages, or large ulcerated or eroded areas. Thus, as such manifestations are not present, such disorder would warrant no more than a 10 percent rating under DC 7307. However, as indicated previously, a separate rating under DC 7307 may not be assigned pursuant to 38 C.F.R. § 4.114. Based on the foregoing, the Board finds that a rating in excess of 30 percent for GERD, with IBS as of January 27, 2012, is not warranted. 2. Entitlement to an initial compensable rating prior to January 7, 2020, and in excess of 10 percent thereafter for allergic rhinitis. The Veteran’s allergic rhinitis has been evaluated as noncompensably disabling as of June 10, 2011, the date of service connection, and 10 percent disabling as of January 7, 2020, pursuant to DC 6522. 38 C.F.R. § 4.97. In this regard, such DC provides that allergic or vasomotor rhinitis without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side warrants a 10 percent rating. Allergic or vasomotor rhinitis with polyps warrants a maximum 30 percent rating. In every instance where the schedule does not provide a zero percent rating for a DC, a zero percent rating shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Turning to the evidence of record, at an October 2012 VA examination, the Veteran reported runny nose, post-nasal drip, and sneezing related to seasonal allergies, which he treated with Claritin and antihistamines. Upon examination, there was not greater than 50 percent obstruction of the nasal passages on both sides, and there was no complete obstruction on one side. There was no permanent hypertrophy of the nasal turbinates or nasal polyps. The examiner noted that there was mild pale, boggy nasal mucosa without obstruction or occlusion of either side of the nose. The oropharynx was normal with only slight post-nasal drip. At an August 2015 VA examination, the examiner diagnosed the Veteran with allergic rhinitis and hypertrophy of nasal turbinates. The Veteran reported bothersome allergic rhinitis symptoms despite use of nasal steroids or oral antihistamines. He also reported daily nasal irritation. Upon examination, there was not greater than 50 percent obstruction of the nasal passages on both sides, and there was no complete obstruction on the left side or the right side. There was permanent hypertrophy of the nasal turbinates, but there were no nasal polyps. At a June 2016 VA examination, the examiner diagnosed the Veteran with allergic rhinitis. Upon examination, there was not greater than 50 percent obstruction of the nasal passages on both sides, and there was no complete obstruction on the left side or the right side. There was no permanent hypertrophy of the nasal turbinates or nasal polyps. The examiner stated that the allergic rhinitis was mild to moderate in severity. At the August 2018 Board hearing, the Veteran testified constantly experiencing runny nose, stuffiness, sinus pressure, itching in the back of the throat, watery eyes, and pressure in the back of the head. He also reported that he had a nasal polyp, which he pushed down himself. At a January 7, 2020, VA examination, the examiner diagnosed the Veteran with allergic rhinitis and hypertrophy of nasal turbinates. At such time, he reported severe chronic wet and dry eye, chronic throat soreness, and severe sleep apnea. The impact of the condition was very irritating, and he had difficulty breathing at night. He stated that lying down makes it difficult to complete certain tasks. Upon examination, there was greater than 50 percent obstruction of the nasal passages on both sides, but there was not complete obstruction on either side. There was permanent hypertrophy of the nasal turbinates, but there were no nasal polyps. Based on the above, during the period on appeal prior to January 7, 2020, the Veteran’s allergic rhinitis was not manifested by greater than 50 percent obstruction of nasal passage on both sides, complete obstruction on one side, or nasal polyps, which is required for a compensable rating under DC 6522. Thus, in the absence of such symptomatology, a compensable rating for such appeal period is not warranted under such DC. However, for the appeal period beginning January 7, 2020, as the Veteran’s allergic rhinitis resulted in greater than 50 percent obstruction of the nasal passages on both sides, a 10 percent rating has been awarded under DC 6522. However, as such disability is not manifested by nasal polyps, which is required for the higher rating of 30 percent under DC 6522, a rating in excess of 10 percent as of January 7, 2020, is not warranted. The Board further finds that a higher or separate rating is not warranted under any other potentially applicable DC. In this regard, in Copeland v. McDonald, 27 Vet. App. 333, 338 (2015), the United States Court of Appeals for Veterans Claims (Court) held that when a condition is specifically listed in the rating schedule, it may not be rated by analogy. See also Suttmann v. Brown, 5 Vet. App. 127, 134 (1993) (providing that “[a]n analogous rating... may be assigned only where the service-connected condition is ‘unlisted.’“). Thus, as the Veteran’s allergic rhinitis is specifically listed in the Rating Schedule under DC 6522, such disability may not be rated by analogy. Other Considerations In reaching the foregoing determinations, the Board notes that, while the Veteran has reported taking various medications to control his gastrointestinal and allergic rhinitis symptoms, the ameliorative effects of such medication was not considered in evaluating the severity of such disabilities. See Jones v. Shinseki, 26 Vet. Vet. 56 (2012) (when a DC is silent as to the effects of medication, VA may not deny entitlement to a higher disability rating based on the relief provided by medication). The Board also acknowledges the Veteran’s belief that his gastrointestinal and allergic rhinitis disabilities are more severe than as reflected by the currently assigned ratings. While the Board recognizes that the Veteran is competent to provide statements regarding his observable symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Rather, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his reports regarding the severity of such conditions. The Board has also considered whether additional staged ratings under Hart, supra, and Fenderson, supra, are appropriate for the Veteran’s service-connected gastrointestinal and allergic rhinitis disabilities; however, such disabilities have remained stable throughout each period on appeal. Therefore, assigning additional staged ratings for such disabilities is not warranted. Further, neither the Veteran nor her representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claims addressed herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In conclusion, the Board finds that a rating in excess of 30 percent for GERD, with IBS as of January 27, 2012, and an initial compensable rating prior to January 7, 2020, and in excess of 10 percent thereafter for allergic rhinitis are not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dawn A. Leung, 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.