Citation Nr: 21013282 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 14-41 794 DATE: March 9, 2021 ORDER An initial disability rating of 30 percent, and no higher, for gastroesophageal reflux disease (GERD) with irritable bowel syndrome (IBS) and spastic colitis is granted. REMANDED The claim of entitlement to an initial disability rating greater than 10 percent for left knee patellofemoral syndrome with osteoarthritis per X-ray is remanded. The claim of entitlement to an initial disability rating greater than 10 percent for right knee patellofemoral syndrome with osteoarthritis per X-ray is remanded. FINDING OF FACT Affording the Veteran the benefit of the doubt, since the grant of service connection, the Veteran’s GERD with IBS and spastic colitis manifested with alternating diarrhea and constipation, nausea, vomiting, dysphagia, pyrosis, reflux, regurgitation, substernal pain, and sleep disturbance, but did not manifest with a level of impairment which includes material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. CONCLUSION OF LAW The criteria for an initial disability rating of 30 percent, and no higher, for GERD with IBS and spastic colitis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.114, Diagnostic Code (DCs) 7346-7319. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1986 to May 2012. These matters come to the Board of Veterans’ Appeals (Board) on appeal from February 2013 and April 2015 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). Significantly, in the February 2013 rating decision the RO, in part, granted service connection for GERD, assigning a noncompensable disability rating effective June 1, 2012. In the April 2015 rating decision, the RO granted service connection for IBS and recharacterized the Veteran’s service-connected GERD ans GERD with IBS and spastic colitis, continuing a noncompensable disability rating. The Veteran disagreed with these decisions and perfected this appeal. Thereafter, by rating decision in September 2018, the RO increased the Veteran’s disability rating for GERD with IBS and spastic colitis from noncompensable to 10 percent disabling, effective June 1, 2012. The Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing in July 2019. A transcript of this proceeding has been associated with the claims file. This case was previously before the Board in November 2019 at which time the above issues were remanded for additional development. Significantly, pursuant to the November 2019 Board remand, the Veteran was afforded new VA GERD/IBS examinations in October 2020 and, by rating decision dated in October 2020, the RO increased the Veteran’s disability rating for GERD with IBS from 10 to 30 percent disabling effective October 14, 2020, the date of the Veteran’s VA GERD/IBS examinations. Since this increase did not constitute a full grant of the benefit sought, the higher initial evaluation issue remains in appellate status both before and after October 14, 2020. AB v. Brown, 6 Vet. App. 35, 39 (1993). 1. An initial disability rating of 30 percent, and no higher, for GERD with IBS and spastic colitis is denied. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability.  Separate diagnostic codes identify the various disabilities.  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 picture more nearly approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.  A Veteran’s entire history is to be considered when assigning disability ratings.  38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). By way of history, the Veteran was diagnosed with both GERD and IBS in service.  He submitted an initial claim for service connection for GERD in December 2011 and, by rating decision dated in January 2013, granted service connection for GERD, assigning a noncompensable disability rating effective June 1, 2012. The Veteran disagreed with the January 2013 rating decision, arguing that he also had a diagnosis of IBS. Subsequently, in the April 2015 rating decision, the RO granted service connection for IBS and recharacterized the Veteran’s service-connected GERD ans GERD with IBS and spastic colitis, continuing a noncompensable disability rating. The Veteran the perfected an appeal of this decision. Thereafter, by rating decision in September 2018, the RO increased the Veteran’s disability rating for GERD with IBS and spastic colitis from noncompensable to 10 percent disabling, effective June 1, 2012. More recently, pursuant to the November 2019 Board remand, the Veteran was afforded new VA GERD/IBS examinations in October 2020 and, by rating decision dated in October 2020, the RO increased the Veteran’s disability rating for GERD with IBS from 10 to 30 percent disabling effective October 14, 2020, the date of the Veteran’s VA GERD/IBS examinations. The Veteran’s GERD is rated under 38 C.F.R. § 4.114, 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. 38 C.F.R. § 4.27. Also relevant is the note at the beginning of the rating schedule for the digestive system: 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. Under DC 7346, a 10 percent evaluation is warranted when there is at least one recurring attack of typical severe abdominal pain in the past year. A 30 percent evaluation is warranted when there is persistently recurrent epigastric distress with dysphasia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent evaluation 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. Note (1) to DC 7346 indicates that abdominal pain in this condition must be confirmed as resulting from pancreatitis by appropriate laboratory and clinical studies. Under DC 7319, a noncompensable rating is warranted for mild irritable colon syndrome, spastic colitis, mucous colitis, etc., manifested by disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent rating is warranted for moderate irritable colon syndrome manifested by frequent episodes of bowel disturbance with abdominal distress. Finally, a 30 percent rating requires severe irritable colon syndrome manifested by diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. Also relevant are DCs 7307 and 7328. DC 7307 pertains to chronic gastritis. Under this code, a 10 percent rating will be assigned for chronic gastritis with small nodular lesions and symptoms. A 30 percent rating will be assigned for chronic gastritis with multiple small eroded or ulcerated areas and symptoms. A maximum 60 percent rating will be assigned for chronic gastritis with severe hemorrhages, or large ulcerated or eroded areas. DC 7328 pertains to resection of the small intestine. A 20 percent rating is provided when the condition is symptomatic with diarrhea, anemia and inability to gain weight. A 40 percent rating is provided when there is definite interference with absorption and nutrition, manifested by impairment of health objectively supported by examination findings including definite weight loss. A maximum 60 percent rating is provided when there is marked interference with absorption and nutrition, manifested by severe impairment of health objectively supported by examination findings including material weight loss. Evidence relevant to the level of severity of the Veteran’s GERD with IBS and spastic colitis includes VA examination reports dated in January 2012, April 2015, and October 2020. Also of record are VA outpatient treatment records dated through April 2020. During a January 2012 VA GERD examination, the examiner noted a diagnosis of GERD with an onset in 2002. The Veteran reported that he avoided acidic foods but was doing very well on Nexium, which he took continuously. Significantly, the examiner found that the Veteran’s GERD had no symptoms and that there was no esophageal stricture, spasm of esophagus (cardiospasm or achalasia), or an acquired diverticulum of the esophagus. The examiner also found that the Veteran’s GERD did not impact his ability to work. During an April 2015 VA IBS examination, the examiner noted diagnoses of IBS and spastic colitis with an onset in 2010. At that time, the Veteran reported five to six loose stools daily with intermittent episodes of constipation. He also reported severe abdominal cramping on a regular basis. He recalled that his workday was interrupted and hindered by urgent needs to pass loose stool and abdominal cramping. He treated his IBS/spastic colitis with Metamucil. Significantly, the examiner found that the Veteran’s IBS/spastic colitis resulted in alternating diarrhea and constipation, nausea, and vomiting. There were no episodes of bowel disturbance with abdominal distress or exacerbations/attacks of the intestinal condition. There was also no weight loss, malnutrition, or other serious effects attributable to the intestinal condition and no other pertinent physical findings. However, the examiner did note that the Veteran’s IBS and spastic colon negatively impacted his ability to work. During an October 2020 VA GERD examination, the examiner noted diagnoses of GERD with IBS spastic colitis, noting an onset in 2005. The Veteran reported that he treated his conditions with continuous prescription medication but could not recall the name of the medication. Significantly, the examiner found that the Veteran’s GERD resulted in dysphagia, pyrosis, reflux, regurgitation, substernal pain, and sleep disturbance (4 or more times per year, each time lasting less than 1 day), nausea (4 or more times per year, each time lasting less than 1 day), and vomiting (4 or more times per year, each time lasting less than 1 day). There was no esophageal stricture, spasm of esophagus (cardiospasm or achalasia), or an acquired diverticulum of the esophagus. There were no other pertinent physical findings and the examiner found that the Veteran’s disabilities did not impact his ability to work. During an October 2020 VA IBS examination, the examiner noted diagnoses of GERD with IBS spastic colitis, noting an onset in 2010. The Veteran reported that he did not treat his conditions with continuous prescription medication. Significantly, the examiner found that the Veteran’s IBS resulted in alternating diarrhea and constipation. It was also noted that the Veteran experienced frequent episodes of bowel disturbance with abdominal distress. However, there was no weight loss, malnutrition, nor serious complications attributable to the Veteran’s intestinal condition and no other pertinent physical findings. The examiner also noted that the Veteran’s IBS did not impact his ability to work. VA outpatient treatment records dated through April 2020 also show treatment for the Veteran’s GERD with IBS and spastic colitis and show findings similar to those noted in the VA examination reports. Significantly, a June 2018 VA treatment record shows a history of 4 episodes of diarrhea twice per week in addition to some days of constipation. Also, September 2019 and March 2020 VA treatment records show that the Veteran underwent colonoscopy privately in October 2014 and November 2019 and that such studies were negative for polyps. Upon review of the above evidence, the Board finds that an initial disability rating of 30 percent, and no higher, is warranted for the Veteran’s GERD with IBS and spastic colitis. As above, a 30 percent rating is warranted under DC 7319 for severe irritable colon syndrome manifested by diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. Significantly, the April 2015 VA IBS examination shows alternating diarrhea and constipation, nausea, and vomiting. While the January 2012 VA GERD examination is negative for any gastrointestinal symptoms, the Veteran contends that his symptoms have remained the same since his discharge from military service. Significantly, in November 2020 correspondence, the Veteran wrote that a 30 percent disability rating was warranted for his GERD with IBS and spastic colitis since June 1, 2012 as both the April 2015 and October 2020 VA examinations showed abdominal distress as well as alternating diarrhea and constipation with additional symptoms of frequent episodes of bowel disturbance moderate symptoms. As such, given the fact that the Veteran was only provided a VA GERD examination in January 2012 and was not provided a VA IBS examination until April 2015 (which is most probative in rating the Veteran’s GERD with IBS and spastic colitis) as well as the Veteran’s allegations that his GERD/IBS symptoms have remained constant since his discharge from service, the Board will afford the Veteran the benefit of the doubt regarding the onset of his current symptomatology and award an initial 30 percent disability rating. As for the potential for a disability rating even higher than 30 percent, the Board notes that there is no evidence that the Veteran has hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health (pertaining to DC 7346). There is also no evidence of chronic gastritis with severe hemorrhages, or large ulcerated or eroded areas (pertaining to DC 7307); and no evidence of either interference with absorption and nutrition, manifested by impairment of health objectively supported by examination findings including definite weight loss or marked interference with absorption and nutrition, manifested by severe impairment of health objectively supported by examination findings including material weight loss (pertaining to DC 7328). Significantly, the January 2012, April 2014, and October 2020 VA examination reports are negative for hematemesis, melena, and weight loss productive of severe impairment of health. Therefore, there is no basis for a higher schedular rating under either DCs 7307, 7328, or 7346. The Board has considered the Court’s holding that VA 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. McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016). The pertinent rating criteria do not contemplate the effects of medication on the Veteran’s gastrointestinal disability. The evidence shows that the Veteran has taken and continues to take medications to treat his gastrointestinal symptomatology. However, the Board emphasizes that this decision is not based on any finding that the Veteran’s medication provided relief. Rather, the denial of a disability rating greater than 30 percent is based on the fact that the necessary digestive symptoms and manifestations contemplated by the higher rating criteria are not demonstrated by the evidence of record, regardless of any medication the Veteran takes for his gastrointestinal disability and relief he receives because of it. Of particular note, the evidence as a whole does not support a finding of severity productive of considerable impairment of health. There is no indication that if the Veteran was not taking medication to relieve his symptoms, he would experience such other symptoms that would result in significant weight loss, anemia, hematemesis, or other indicator of considerable impairment of health. The Board acknowledges the Veteran’s description of his symptoms and notes lay persons are competent to attest to factual matters of which he has first-hand knowledge (e.g., experiencing epigastric symptoms). Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s gastrointestinal disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings as provided in the examination reports directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran’s subjective complaints of increased symptomatology. Moreover, the Board finds that the Veteran would not be entitled to a rating in excess of 30 percent under another DC. The Board notes no other DCs are appropriate, as none of them are for a disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies are to be avoided. See 38 C.F.R. § 4.20. As such, the Board finds that an initial disability rating of 30 percent, and no higher, is warranted for the Veteran’s GERD with IBS and spastic colitis. REASONS FOR REMAND 2. & 3. The claims of entitlement to an initial disability rating greater than 10 percent for left knee patellofemoral syndrome with osteoarthritis per X-ray and entitlement to an initial disability rating greater than 10 percent for right knee patellofemoral syndrome with osteoarthritis per X-ray are remanded. The Veteran’s appeal for higher initial ratings for his service-connected bilateral knee disabilities was last adjudicated by the RO in an October 2020 supplemental statement of the case (SSOC). Effective February 7, 2021, several changes to the diagnostic codes used for rating disabilities of the knees were made. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5257). When a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeals process has been concluded, the version of the law or regulation most favorable to the appellant generally applies. Only the former criteria can be applied for the period prior to the effective date of the new criteria. However, both the old and new criteria can be applied as of that date. See VAOPGCPREC 7-2003 (Nov. 19, 2003); see also 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114. Unfortunately, the RO has not yet had a chance to consider the amended criteria pertaining to rating disabilities of the knees effective February 7, 2021. There is evidence that the new criteria are relevant to the Veteran’s appeal. As such, on remand, the RO should consider both the old and new criteria regarding the knees beginning February 7, 2021 and readjudicate the claim in a new SSOC. The matters are REMANDED for the following action: After considering the amended criteria pertaining to rating disabilities of the knees effective February 7, 2021, Veteran’s bilateral knee claims should be readjudicated in an SSOC. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, 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.