Citation Nr: 21012131 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-13 868 DATE: March 3, 2021 ORDER Entitlement to a 60 percent rating for gastroesophageal reflex disease (GERD) with irritable bowel syndrome (IBS) is granted. FINDING OF FACT Throughout the appeal period, the Veteran’s GERD with IBS manifested as recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal arm or shoulder pain, nausea, hematemesis and melena that was productive of severe impairment of health. CONCLUSION OF LAW The criteria for entitlement to a 60 percent rating, but no higher, for GERD with IBS have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1—4.14, 4.21, 4.114(a), Diagnostic Code 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1988 to July 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision issued by a Department of Veterans Affairs Regional Office (RO), which granted service connection for GERD and assigned a noncompensable rating. The Veteran then appealed the initial rating and indicated that he also has associated bowel impairment. The RO subsequently increased the evaluation to 10 percent in an August 2013 rating decision but did not address the bowel impairment. In June 2018, the Board remanded the Veteran’s claim for a higher initial rating for GERD, to include whether entitlement to service connection for associated bowel impairment was warranted. Subsequently, in February 2019, the RO granted service connection for IBS and recharacterized the Veteran’s service-connected disability to GERD with IBS, increasing the rating from 10 percent to 30 percent, from the initial grant of service connection. The matter returned before the Board in July 2019, where it was denied again. The Veteran then appealed the Board’s decision to the Court of Appeals for Veterans Claims (Court). The Veteran and VA then agreed to a November 2020 Joint Motion to Remand (JMR) based on inadequate reasons and bases provided in the Board’s July 2019 decision. The matter has now returned before the Board for adjudication. 1. Entitlement to an increased rating in excess of 30 percent for GERD with IBS The Veteran asserts that his GERD with IBS is worse than currently rated. Specifically, he asserts that the presence of hematemesis and melena warrants a higher rating. Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. 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 time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). The Board notes that the regulations clearly contemplate the assignment of a single rating in order to avoid violating the fundamental principle relating to pyramiding as outlined in 38 C.F.R. § 4.14. Particularly, the Board notes that the schedular rating criteria specifically precludes separate ratings for certain co-existing abdominal conditions. 38 C.F.R. § 4.113. 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 do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14. 38 C.F.R. § 4.113. Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342 and 7345 to 7348, inclusive, are not to be combined with each other. Rather, a single rating is to be assigned under the diagnostic code reflecting the predominant disability picture with elevation to the next higher rating where the severity of the overall disability warrants such rating. 38 C.F.R. § 4.114. Certain diseases of the digestive system, particularly those of the abdomen, albeit differing in their site of pathology, produce a common disability picture characterized mainly by varying degrees of abdominal stress or pain, anemia, and disturbances in nutrition. 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 Sec. 4.14. Thus, rating under diagnostic codes 7301 through 7329, 7331, 7342, and 7345 through 7348 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. 4.14. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s service-connected GERD with IBS is currently rated at 30 percent pursuant to Diagnostic Code 7346. 38 C.F.R. § 4.71(a). As no diagnostic code directly contemplates GERD, the Veteran’s condition has been rated analogously to Diagnostic Code 7346 which covers hiatal hernia. Diagnostic Code 7346 provides for a 30 percent rating for persistent recurring 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 contemplated 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. Application of Diagnostic Code 7319 for irritable colon syndrome (analogous to irritable bowel syndrome) would not be helpful to the Veteran, as the maximum schedular rating under that code is 30 percent, the level at which the Veteran’s condition is already rated. No other diagnostic codes either apply or would be helpful to the Veteran’s claim as they do not provide higher ratings in excess of 30 percent and/or contemplate the Veteran’s symptomatology. Id. 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 condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The appeal period for this claim dates May 2012. As such, the Board will review all evidence from that time onwards. The Veteran was provided a VA examination in August 2013. The examiner noted that the Veteran’s condition was manifesting in epigastric burning with reflux. The Veteran reported increased frequency of vomiting, daily nausea, and recurrent burning esophageal pain. The Veteran also reported pain across his chest and both of his arms. The Veteran also reported being unable to lay flat at night due to pain. The Veteran was also limited in his diet, avoiding consuming tomatoes, lettuce, chocolate, coffee, and alcohol, for fear of exacerbating his symptoms. The examiner noted that the Veteran suffered from at least four or more recurring episodes of severe symptom per year, with the average duration of each episode lasting between one to nine days. The examiner also noted the Veteran experiencing transient hematemesis at a frequency of two episodes and melena at a frequency of four or more episodes per year. Additionally, the examiner also noted that the Veteran experienced incapacitating episodes at least four or more times a year where “he could not keep any food down and had acid reflux up to his windpipe. These episodes lasted for approximately three days at a time and then would subside. The Veteran was provided another VA examination in September 2017, in which the examiner noted persistent recurrent epigastric distress, dysphagia, reflux, regurgitation, substernal pain, arm pain, and shoulder pain. The examiner also noted the Veteran suffering from sleep disturbance caused by esophageal reflux, occurring at least four or more times per year, with an average duration of 10 days or more. The Veteran also suffered from vomiting and nausea, both occurring at least four or more times per year and having an average duration of 10 days or more. The examiner opined that the Veteran’s symptoms had increased in frequency and severity since his previous exam. The Veteran was next provided a VA examination in February 2019, in which the examiner noted that the Veteran’s GERD had continued to worsen in severity and frequency of symptoms. The Veteran was noted to suffer from constant abdominal cramping and spasms, along with frequent and uncomfortable abdominal distension. Veteran suffering from cramping and spasms in his abdomen. The examiner also noted that the. Additionally, the Veteran had suffered from constant diarrhea since 2012 that was also increasing in severity. The examiner also noted that the Veteran had constant episodes of bowel disturbance with abdominal distress and at least seven or more episodes in the past 12 months of exacerbations and/or attacks of his condition. The Veteran was also noted as having difficulty working due to the constant diarrhea manifested by his condition. The Board has also considered the lay statement submitted by the Veteran’s fiancée in support of his claim. She states that the Veteran wakes during the night vomiting and complaining of heartburn. Throughout the appeal period, the Veteran’s GERD with IBS manifested as recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal arm or shoulder pain, and nausea. However, the Veteran was also noted as suffering from melena and hematemesis in his August 2013 examination. While the subsequent exams do not clearly state whether the Veteran continues to suffer from melena and/or hematemesis, both examiners did state that the Veteran’s condition had continued to worsen in severity and frequency of episodes. The subsequent examination of September 2017 and February 2019 examinations show that the Veteran’s condition has progressively worsened. Severe impairment of health is descriptive of the Veteran’s current condition, given that he is prevented from sleeping comfortably, is severely restricted in his diet, and suffers from recurrent vomiting and painful acid reflux. Although the record does not show the Veteran suffering from anemia, another symptom contemplated under the 60 percent rating, the Board finds that the Veteran’s overall symptomatology rises to the level of a severe impairment of health. Therefore, the Board finds that a 60 percent rating is warranted for GERD with IBS. This is the maximum schedular rating available under the diagnostic code. The Board acknowledges the Veteran’s statements regarding the severity of his symptoms. Laypersons are competent to attest to physical symptoms that are experienced or observed. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Board finds that the lay evidence describing the symptoms in this case does not establish a greater degree of functional impairment than the rating assigned herein. The Veteran’s belief that he is entitled to higher ratings for his disability is outweighed by the objective medical findings of record. That is, the Board assigns greater probative value to the pertinent objective findings on the VA examination reports and treatment records that were recorded following physical examinations of the Veteran, than to the Veteran’s general belief that he is entitled to a higher rating. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. 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). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran reported being employed at the canteen in an April 2016 VA treatment note and his current employment status is unknown. Moreover, he has not alleged being unable to obtain and maintain gainful employment due to his service connected GERD with IBS. As such, Rice is inapplicable in this case. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Resolving the benefit of the doubt in favor of the Veteran, the Board finds that his claim for increased rating to 60 percent under Diagnostic Code 7346 for GERD with IBS is warranted. Accordingly, the Veteran’s claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kashif I. Ali, 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.