Citation Nr: 21030417 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 15-22 561 DATE: May 18, 2021 ORDER Entitlement to an initial compensable evaluation for service-connected rhinitis is denied. Prior to July 22, 2019, an initial evaluation of 10 percent, and no greater, for gastroesophageal reflux disease (GERD) is granted. Beginning July 22, 2019, the claim for an initial evaluation greater than 30 percent for GERD with irritable bowel syndrome (IBS) and diverticulitis is denied. FINDINGS OF FACT 1. The service-connected allergic rhinitis does not result in 50 percent obstruction of the nasal passages on both sides, complete obstruction on either the left or right side, or any nasal polyps. 2. Prior to July 22, 2019, the service-connected GERD was manifested by persistently recurrent epigastric distress with pyrosis with no findings of dysphagia, regurgitation, or considerable impairment of health; or of vomiting, material weight loss and hematemesis or melena with anemia, or other symptoms or combination productive of considerable or severe impairment of health. 3. Beginning July 22, 2019, the service-connected GERD with IBS and diverticulitis is manifested by severe symptoms of diarrhea or alternating diarrhea and constipation, with more or less constant abdominal distress; asymptomatic diverticulitis; and no findings of vomiting, material weight loss and hematemesis or melena with anemia; or other symptoms productive of severe impairment of health. Diverticulosis is asymptomatic. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation for allergic rhinitis are not met. 38 U.S.C. §§ 1155; 38 C.F.R. § 4.97, Diagnostic Code 6522. 2. For the period prior to July 22, 2019, the criteria for an initial evaluation of 10 percent, and no greater, for GERD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, Diagnostic Code (Code) 7346. 3. For the period beginning July 22, 2019, the criteria for an evaluation greater than 30 percent for GERD with IBS and diverticulosis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, Code 7346-7319 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Coast Guard on active service from October 2009 to October 2014. This appeal comes before the Board of Veterans Appeals (Board) from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This matter was previously before the Board in January 2019 where the issues of entitlement to service connection for asthma, increased rating for allergic rhinitis, and GERD were remanded for further development. Thereafter, in a September 2019 rating decision, the RO granted service connection for irritable syndrome and diverticulosis and assigned a 30 percent evaluation for GERD with irritable bowel syndrome and diverticulosis effective July 22, 2019. However, inasmuch as a higher rating is available and as the Veteran is presumed to seek the maximum available benefit for a disability, this claim for a higher rating remains in appellate status and is properly before the Board. AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In addition, service connection for asthma was granted in an August 2020 rating decision. The issue on appeal of service connection, having been granted, is now no longer before the Board. The Board finds that the agency of original jurisdiction (AOJ) has fulfilled the duty to notify and assist the Veteran in substantiating his claim for VA benefits, as prescribed in 38 U.S.C. §§ 5100, 5102, 5103, 5109A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). All other identified and relevant records have been obtained or appropriate efforts to secure them have been undertaken. Additional VA examinations were accorded the Veteran as a result of a 2019 Board remand. See 38 U.S.C. § 5103A(d), 38 C.F.R. § 3.159(c)(4), and McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran's representative has requested remand for another VA examination should the claims not be granted; however, the representative has not argued the examinations provided are inadequate or provided any other finding that the AOJ has not ultimately met its duty to assist. The VA examinations were conducted with review of the record and examination of the Veteran. The VA examiners considered the Veteran's lay testimony, and the Veteran's report of symptoms. The VA examinations in aggregate provide adequate evidence of sufficient probative value for the Board to accurately analyze the Veteran's claims in context of the regulations and rating criteria. The Board thus finds that the AOJ has met its duty to assist and further remand is not required. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating 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 appellant working or seeking work. 38 C.F.R. § 4.2. 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. "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the provisions of 38C.F.R. §4.31, in every instance where the schedule does not provide for a zero percent rating, such an evaluation will be assigned when the requirements for a compensable evaluation have not been met. a) Rhinitis The Veteran filed a claim for service connection for allergic rhinitis in October 2014, which was granted in March 2015, and evaluated as noncompensable, effective October 26, 2014. He has appealed the evaluation assigned. The Veteran's allergic rhinitis is evaluated under Diagnostic Code 6522. A 10 percent evaluation is assigned for allergic rhinitis without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. A 30 percent rating is assigned for allergic rhinitis with polyps. The Veteran's medical records do not establish that a compensable disability evaluation is warranted as they do not show that his allergic rhinitis is manifested by greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side, or that he has polyps. VA examinations in February 2015 and October 2019 show the Veteran did not have greater than 50 percent obstruction of the nasal passages on both sides due to rhinitis; there was no complete obstruction on the left or right side due to rhinitis. The examiners indicated the Veteran did not have nasal polyps. The Veteran has asserted his allergic rhinitis is more severe than it has been evaluated. The Veteran is competent to report his complaints, but without evidence of greater than 50 percent obstruction of the nasal passages on both sides due to rhinitis, or complete obstruction of the left or right side due to rhinitis, or the presence of nasal polyps, a compensable evaluation cannot be assigned. The evidence of record does not establish findings consistent with a compensable percent evaluation. VA and private treatment records, and VA examinations conducted in February 2015 and October 2019 consistently demonstrate that the Veteran's allergic rhinitis does not result in 50 percent obstruction of the nasal passages on both sides or that there is complete obstruction on either the left or right side, or that any nasal polyps were found. As such, the record does not show the required manifestations for a compensable evaluation are met under Diagnostic Code 6522. 38 C.F.R. § 4.97. Accordingly, the criteria for a compensable schedular evaluation for the Veteran's allergic rhinitis have not been met, and the claim is denied. b) GERD The Veteran filed a claim for service connection for GERD in October 2014, which was granted in March 2015, and evaluated as noncompensable, effective October 26, 2014 under Code 7399-7346, for digestive disorder evaluated as hiatal hernia. See 4.27. The Veteran appealed the evaluation assigned. In July 2019, the Veteran filed a new claim for service connection for IBS and diverticulitis. The claim was granted, and the IBS and diverticulitis were evaluated with the GERD under Code 7346-7319, for hiatal hernia (GERD) evaluated as IBS. A 30 percent evaluation was assigned effective July 22, 2019. Under 38 C.F.R. § 4.114, ratings under Codes 7346 and 7319 may not be combined with each other. Instead, a single evaluation will be assigned under the Code that reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. Thus, as reflected on the front page of this decision, there are two time periods at issue, prior to July 22, 2019, when an initial compensable evaluation is claimed for GERD under Code 7399-7346, and beginning July 22, 2019, when an initial evaluation greater than 30 percent is claimed for GERD with IBS and diverticulitis under Code 7346-7319. Code 7346 affords a 60 percent evaluation 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 evaluation is afforded for persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal (chest) pain, productive of considerable impairment of health. A 10 percent rating is assigned for two or more of the symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114, Code 7346. Code 7319 affords a 30 percent evaluation for severe IBS; diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. This is the highest evaluated afforded under the Code. A 10 percent evaluation is assigned for moderate IBS, frequent episodes of bowel disturbance with abdominal distress. A noncompensable evaluation is assigned for mild IBS, disturbances of bowel function with occasional episodes of abdominal distress. 38 C.F.R. § 4.114, Code 7319. 1. Before July 22, 2019 The Veteran's medical records establish that a 10 percent, and no greater, evaluation is warranted as VA and private treatment records show the Veteran to experience epigastric distress with heartburn, treated with prescribed medications throughout this time period. VA treatment and private treatment records do not establish that the service-connected GERD is during this time period manifested by dysphagia, regurgitation accompanied by substernal or arm or shoulder pain resulting from the GERD which is productive of considerable impairment of health. In addition, there are no findings of vomiting, material weight loss, hematemesis or melena, or anemia resulting from GERD. VA examination in February 2015 show a diagnosis of GERD with current symptoms of pyrosis without esophageal stricture, spasm or acquired diverticulum of the esophagus, and no other pertinent physical findings, complications, conditions, or signs and symptoms resulting from GERD. The evidence of record establishes findings consistent with a compensable evaluation, in that it establishes the service-connected GERD was during this time period manifested by persistent epigastric destress with pyrosis. However, the evidence of record does not demonstrated findings consistent with an evaluation greater than 10 percent. The Veteran consistently denied vomiting and unintended weight loss. There are no findings of dysphagia, regurgitation, or considerable impairment of health due to the GERD during this time period. Moreover, there are no findings of material weight loss, hematemesis or melena, anemia resulting from GERD; or other symptoms productive of severe impairment of health resulting from GERD during this appeal period. As such, the evidence supports an evaluation of 10 percent but no greater under Diagnostic Code 7346 for this time period. 38 C.F.R. § 4.97. The Veteran has asserted his GERD is more severe than it has been evaluated. The Veteran is competent to report his complaints, and the Board recognized this and awarded a 10 percent evaluation for this time period based on his report of pain and reflux, and VA examiner's observations of epigastric distress with pyrosis during this time period. But the Veteran has not reported, and medical evidence has not demonstrated symptoms of dysphagia, regurgitation, or considerable impairment of health resulting from GERD required for the 30 percent evaluation during this time period. In addition, the Veteran has not reported, and medical evidence does not show symptoms of vomiting, material weight loss, hematemesis or melena, anemia, or severe impairment of health due to symptoms of GERD during this time period. Thus, an evaluation greater than 10 percent for this time period for the service-connected GERD cannot be granted. Accordingly, the criteria for a 10 percent evaluation for GERD, and no greater, are met, and the claim to that extent is granted. 2. Beginning July 22, 2019 The 30 percent evaluation under Code 7319 is the highest evaluation under the Code. Thus, the Board will consider whether an evaluation greater than 30 percent is warranted for the service-connected GERD with IBS and diverticulitis under Code 7346. VA treatment and private treatment records reflect treatment for GERD and IBS with prescribed medications, but do not establish that the service-connected GERD is during this time period manifested by findings of material weight loss with hematemesis or melena, or anemia. The Veteran consistently denied vomiting as the result of his gastrointestinal disorder, and there is no indication that the Veteran has other symptoms that are the result of GERD with IBS and diverticulosis that have caused severe impairment of health during this time period. In an October 2019 VA examination for esophageal and intestinal conditions the VA examiner reported symptoms of reflux, substernal pain, and nausea occurring 2 times per year and lasting less than a day but no dysphagia, pyrosis, regurgitation, material weight loss, vomiting, or hematemesis or melena with anemia resulting from the GERD with IBS and diverticulosis. No other signs or symptoms were reported. Diverticulosis was observed to be asymptomatic. The evidence of record does not established findings consistent with an evaluation greater than 30 percent for the service-connected GERD with IBS and diverticulosis, in that it there are no findings of dysphagia, vomiting, material weight loss with hematemesis or melena, or anemia; or other symptoms productive of severe impairment of health resulting from the GERD with IBS and diverticulosis during this appeal period. Moreover, the condition of diverticulosis was found throughout the appeal period to be without symptoms. As such, the evidence does not support an evaluation greater than 30 percent under Diagnostic Code 7346-7319 for this time period. 38 C.F.R. § 4.97. The Veteran has asserted his GERD with IBS and diverticulosis has worsened and is more severe than has been it has been evaluated. The Veteran is competent to report his complaints, but he has not reported dysphagia, regurgitation, material weight loss, hematemesis or melena, or anemia and the medical record to include VA and private treatment records, and VA examination reports does not establish he has been observed to manifested these symptoms or other symptom combinations productive of severe impairment of health as the result of his service-connected GERD with IBS and diverticulosis. Thus, an evaluation greater than 30 percent for the service-connected GERD with IBS and diverticulosis beginning July 22, 2019 cannot be granted. Accordingly, the criteria for an evaluation greater than 30 percent for service-connected GERD with IBS and diverticulosis are not met beginning July 22, 2019, and the claim is denied. JESSICA SEAY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bakke, Lila J. 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.