Citation Nr: 21029290 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-37 614 DATE: May 13, 2021 ORDER Entitlement to an initial rating in excess of 70 percent for post-traumatic stress disorder (PTSD) has been withdrawn. Entitlement to separate ratings for ulcerative colitis and gastroesophageal reflux disease (GERD) is denied. REMANDED Entitlement to an initial compensable rating prior to April 15, 2015, and in excess of 30 percent since April 15, 2016, for ulcerative colitis and GERD is remanded. Entitlement to service connection for ingrown toenails is remanded. FINDINGS OF FACT 1. On April 7, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his attorney, that a withdrawal of the appeal with respect to the issue of entitlement to an initial rating in excess of 70 percent for PTSD is requested. 2. The Rating Schedule provides that ratings under Diagnostic Codes 7323 for ulcerative colitis and 7346 for GERD rated as analogous to hiatal hernia will not be combined with each other. CONCLUSIONS OF LAW 1.The criteria for withdrawal of the issue of entitlement to an initial rating in excess of 70 percent for PTSD by the Veteran, through his attorney, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. Separate disability ratings for ulcerative colitis and GERD are precluded by regulation. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14, 4.113, 4.114, Diagnostic Codes 7323, 7346 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 2007 to February 2011. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in August 2020. It appears that the Board was alerted of the fact that the Veteran did not receive a copy of the August 2020 Board decision, to include remands from which the current appeal originates, and a copy of the decision was sent again in April 2021. However, the Board notes that this error was immaterial with respect to the issues on the current appeal, for the Veteran's attorney was on notice and provided a brief for the issues in April 2021 prior to the Board letter. 1. Entitlement to an initial rating in excess of 70 percent for post-traumatic stress disorder (PTSD) The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran, through his attorney, has withdrawn this appeal with respect to the issue of entitlement to an initial rating in excess of 70 percent for PTSD in April 2021, and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed. 2. Entitlement to separate ratings for ulcerative colitis and gastroesophageal reflux disease (GERD) The Veteran seeks separate ratings for his ulcerative colitis and his GERD. In his April 2021 statement, the Veteran's attorney argues that while both conditions are part of the digestive tract, they are in different locations with different symptoms GERD concentrated in the northern part of the stomach and esophagus involving heartburn, pyrosis, vomiting, and substernal pain while colitis occurs in the intestines and bowel involving waste evacuation (bowel movement) dysfunction. The Veteran's attorney argues that the Agency of Original Jurisdiction (AOJ) has each condition listed under a separate diagnostic code (colitis under 7323 and GERD under 7346) meaning that each condition warrants individual service-connection and rating since their symptoms are not the same, and, therefore, not shared. The Veteran's ulcerative colitis and GERD are rated as noncompensable prior to April 15, 2016, and 30 percent thereafter pursuant to 38 C.F.R. § 4.114, under Diagnostic Codes 7346-7323. 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. GERD does not have its own specific diagnostic code. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. As such, the Veteran's GERD has been rated by analogy to hiatal hernia pursuant to Diagnostic Code 7346 which provides for a 60 percent rating 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; a 30 percent rating for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health; and a 10 percent rating for disability with two or more of the symptoms for the 30 percent evaluation of less severity. The Veteran's ulcerative colitis is rated pursuant to Diagnostic Code 7323 which pertains specifically to ulcerative colitis. Because the Veteran is rated under a diagnostic code that is specific to the service-connected disability, he may not be rated by analogy under another diagnostic code even if doing so would result in a higher rating. See Copeland v. McDonald, 22 Vet. App. 333 (2015); Suttman v. Brown, 5 Vet. App. 127 (1993). Diagnostic Code 7323 provides for a 10 percent rating for moderate colitis with infrequent exacerbations; a 30 percent rating is warranted for moderately severe colitis with frequent exacerbations; a 60 percent rating is warranted for severe colitis with numerous attacks a year and malnutrition and with health only fair during remissions. A 100 percent rating is warranted for pronounced colitis resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess. 38 C F R. § 4 114. The Rating Schedule states that there are diseases of the digestive system 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. 38 C.F.R. § 4.113. Thus, 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. 38 C.F.R. § 4.114. The Veteran does not argue, and the record does not indicate, that the Diagnostic Codes for either disorder is incorrect Thus, the Board finds assigning separate ratings is legally precluded. REASONS FOR REMAND 3. Entitlement to an initial compensable rating for ulcerative colitis and GERD is remanded. In August 2020, the Board remanded the issue for an additional VA examination to determine the current severity and functional limited caused by the Veteran's gastrointestinal symptoms. The Veteran underwent VA examinations in November 2020 at which time the Veteran was diagnosed as having esophagitis by upper endoscopy in 2017. The examiner noted that GERD was not found on examination; however, an April 2013 Primary Care noted gastroesophageal reflux (GER) symptoms controlled on omeprazole. The examiner also found that the Veteran had never been diagnosed with an intestinal condition. The examiner noted that she was not sure why the Veteran was given a diagnosis of ulcerative colitis as labs, colonoscopy, and biopsy were all negative for ulcerative colitis. The examiner noted that endoscopic procedures with tissue biopsy are the only way to definitely diagnose ulcerative colitis. The examiner noted that the Veteran did not have a history of ulcerative colitis. The Veteran's service treatment records indicate that he was seen in December 2010 with a four- to five-week history of hematochezia, confirmed on occult blood cards. In January 2011, the Veteran underwent a colonoscopy; impression was diffuse moderate inflammation was found rectum and sigmoid colon secondary to proctosigmoid ulcerative colitis which was biopsied. The record also contains a diagnosis of ulcerative colitis on September 27, 2015; however, the Veteran's treating gastroenterology physicians have not been able to determine the exact diagnosis for the Veteran's gastrointestinal condition. Nevertheless, a disability rating is based not only a diagnosis but more importantly, the symptoms. The examiner further found that the Veteran's esophagitis was not incurred in or caused by service. In this case, the Veteran's attorney argues that the examinations are inadequate. Specifically, the attorney noted that the examiner took a very brief, inadequate histories of symptoms from the Veteran; the attorney noted that the Veteran affirmed daily bloody stools but then failed to complete the rest of the examination to include symptoms associated with bowel movements as she disagreed with the Veteran's diagnosis. A review of the VA examinations indicate that they contain inconsistencies. Specifically, the Veteran reported, "whenever I am hungry I started having reflux, it feel like burning in the chest ..." The examiner noted that the Veteran had current symptoms of heartburn, yet she failed to indicate that the Veteran had pyrosis. Similarly, the Veteran also reported abdominal discomfort a day before he passed fresh bloody stool; yet the examiner made no mention of hematochezia. As such, the Board finds the examinations are inadequate; thus, remand is required to provide the Veteran with an opportunity to report for additional examinations. 4. Entitlement to service connection for ingrown toenails is remanded. In August 2020, the Board remanded the issue for an addendum opinion to address whether the Veteran's ingrown toenails were aggravated by his service-connected left foot plantar fasciitis with plantar spur. The Veteran underwent VA examination in November 2020 at which time only a diagnosis of plantar fasciitis with plantar spur was noted. The examiner did not provide the requested opinion; instead, the examiner noted an ingrown toenail condition was not found on examination and that the Veteran had never been seen for ingrown toenail while in service. The Board notes that the record contains diagnosis of ingrown toenail on February 21, 2014, during the appeal period. The Board advises that the 'current disability' requirement is satisfied when a claimant has a disability at the time of filing the claim or at any point during the pendency of the claim, even if the disability has since resolved. McLain v. Nicholson, 21 Vet. App. 319 (2007); see Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (holding "that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability exist[s]"). As such, the Board finds the examination is inadequate; thus, remand is required to provide the Veteran with an opportunity to report for an additional examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician, preferably a gastroenterologist, to address the current severity of his service-connected gastrointestinal disability (currently noted to be ulcerative colitis and GERD). The clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 2. Schedule the Veteran for an examination by an appropriate clinician, preferably a podiatrist, to address whether Veteran's ingrown toenails are at least as likely as not (i) proximately due to or (ii) aggravated beyond its natural progression by service-connected plantar fasciitis. (Continued on the next page) In doing so, if the clinician does not find that the Veteran has a current ingrown toenail disability, he or she should address whether the earlier diagnosis was inaccurate, or the previously diagnosed condition resolved. Y. Taylor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Olson, Patricia 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.