Citation Nr: 21030625 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 11-26 719 DATE: May 19, 2021 ORDER Entitlement to an increased disability evaluation for a gastrointestinal disorder, currently rated as 30 percent disabling, on a schedular basis, is denied. An extraschedular rating of 20 percent, in addition to the current schedular 30 percent rating for a gastrointestinal disorder is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The Veteran's gastrointestinal disorder has been shown to cause epigastric burning, regurgitation, reflux, feeling of nausea; feelings of gasping for air; substernal pain; loss of sleep; and considerable impairment of health. There have been no findings of anemia, material weight loss, vomiting, hematemesis, or melena or symptoms productive of severe impairment of health. 2. The impairment caused by the Veteran's sleep impairment resulting from his gastrointestinal disorder most nearly approximates an additional 20 percent extraschedular rating, beyond the current schedular rating of 30 percent. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for gastrointestinal disorder on a schedular basis have not been met at any time. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.114, DC 7346 (2020). 2. The criteria for an extraschedular rating of 20 percent for gastrointestinal disorder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.114, DC 7346 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1986 to October 1991. This case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2009 decision that, in pertinent part, denied an increase in a 10 percent rating for a gastrointestinal disorder. A videoconference hearing was held in March 2015 before the undersigned Veterans Law Judge (VLJ) of the Board. Unfortunately, due to technical difficulties, a transcript of this hearing could not be produced. The Veteran was subsequently offered the opportunity for another Board hearing, and in June 2015, he declined another hearing. The matter was remanded for further development in August 2015. Following the requested development, the Board, in a July 2017 decision, in pertinent part, denied an evaluation in excess of 10 percent for the Veteran's service-connected gastrointestinal disorder. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In April 2018, the parties filed a Joint Motion for Partial Remand (JMPR). Later that month, the Court granted the JMPR and remanded the matter to the Board for actions consistent with the JMPR. In August 2018, the Board remanded this matter for additional development, to include the performance of an additional VA examination and to obtain an opinion from the Director of Compensation with regard to the assignment of an extraschedular disability evaluation. The Board once again remanded this matter for further development in August 2020. In the August 2020 remand, the Board requested that the Veteran be scheduled for a VA examination, with the examiner specifically noting the medication the Veteran took to control his gastrointestinal disorder, and to comment, to the extent possible, on the additional symptoms and related impairment that would be present without the relief provided by medication used to treat the condition. The Board noted that the requested opinion had not been provided. In the August 2020 remand, the Board again requested that the examiner specifically note the medication the Veteran took to control his gastrointestinal disorder, and comment, to the extent possible, on the additional symptoms and related impairment that would be present without the relief provided by medication used to treat the condition. In conjunction with the Board remand, an additional VA examination addendum report was prepared in October 2020. While the examiner commented on the symptoms caused by the service-connected GERD and noted that the Veteran was taking daily medication to control his GERD, she did not comment on what additional symptoms and related impairment would be present without the relief provided by medication used to treat the condition. In a November 2020 rating determination, the RO increased the Veteran's disability evaluation for his gastrointestinal disorder from 10 to 30 percent for the entire appeal period. The matter was once again remanded in March 2021. The Board found that while the examiner commented on the symptoms caused by the service-connected GERD and noted that the Veteran was taking daily medication to control his GERD, she did not comment on what additional symptoms and related impairment would be present without the relief provided by medication used to treat the condition. The Board found that this was one of the specific bases for the original JMPR. The Board remanded the matter and found that the examiner had to specifically note the medication the Veteran took to control his gastrointestinal disorder, and comment, to the extent possible, on the additional symptoms and related impairment that would be present without the relief provided by medication used to treat the condition. The requested opinion was provided in March 2021 and the matter is now ready for appellate review. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran claims that an increased evaluation is warranted on the basis of his gastrointestinal disorder. The Veteran's gastrointestinal condition is currently rated as 30 percent disabling under DC 7346 for hiatal hernia. The medical record includes multiple digestive system diagnoses, including esophageal reflux with ulceration and hiatal hernia. 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 (2020). Ratings under DCs 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 DC 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 (2020). Under Diagnostic Code 7346, a 60 percent evaluation requires 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 warranted for hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis and regurgitation accompanied by substernal or arm or shoulder pain, productive of a considerable impairment of health. A 10 percent evaluation is warranted for two or more of the symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114, Diagnostic Code 7346. Dysphagia is defined as difficulty in swallowing. Dorland's Illustrated Medical Dictionary, 579 (32nd ed. 2012). Pyrosis is defined as heartburn. Id. at 1563. Hematemesis is defined as the vomiting of blood. Id. at 831. Melena is defined as the passage of dark-colored feces stained with blood pigments or with altered blood. Id. at 1126. The Veteran was afforded a VA examination in February 2009. A diagnosis of a gastrointestinal condition that included esophageal reflux with ulceration and hiatal hernia was rendered at that time. The Veteran reported difficulty swallowing solid foods for 60 months, but otherwise no symptoms of an esophageal condition. Treatment was noted to consist of Pepcid 20 mg per day with moderate response for four to five hours. No hospitalizations or surgeries were reported. The Veteran indicated the following functional impairments: inability to eat certain foods; and inability to perform normal activities during flare-ups of severe heartburn, regurgitation, and diarrhea. Examination revealed a non-tender hiatal hernia located superior to the xyphoid process. There were no findings of tenderness to palpation, an ostomy, ascites, splenomegaly, or an aortic aneurysm. Complete Blood Count (CBC) test results were within normal limits and significant anemia was not found. In November 2015, the Veteran was treated at the VA Wyoming Health Care Center regarding his history of gastrointestinal reflux disease (GERD). The Veteran reported symptoms of heartburn but denied symptoms of abdominal pain, diarrhea, constipation, trouble swallowing or nausea. The physician advised the Veteran to avoid aggravating factors and to take antacids as needed. In May 2016, the Veteran returned to the VA Wyoming Health Care Center for a follow up. The Veteran reported that he had occasional heartburn, depending on what he ate. He stated that he was not having trouble swallowing and that he was not taking medication. The physician reported that the Veteran's GERD was stable and that he should avoid aggravating factors. At the time of a July 2016 VA examination, the Veteran was diagnosed with GERD and hiatal hernia. The examiner noted that the Veteran was now taking pantoprazole (instead of Prilosec), which was helping. The Veteran stated that his symptoms were well controlled as long as he took his medication, but that he occasionally would have symptoms during sleep. He reported symptoms of reflux, regurgitation, substernal pain, and sleep disturbance caused by esophageal reflux at least four times per year. No other significant diagnostic findings or functional impacts were noted. In its April 2018 JMPR, the parties noted that the Board had denied a higher rating in part because his "condition is stable and is well controlled with his medications." The parties noted that in Jones, the Board denied a higher rating for irritable bowel syndrome in part because "medication provided some relief of symptoms." Jones v. Shinseki, 26 Vet. App. 56, 59 (2012). The Court found that this statement was error, and it held that "the Board 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." Id. at 63. The parties noted that the Board rated the Veteran's gastrointestinal disorder under Diagnostic Code (DC) 7346, which did not specifically contemplate relief provided by medication. The parties agreed that the Board's denial of a higher rating in part because the Veteran's disability was controlled by his medication did not comply with the Court's holding in Jones, and remand was warranted for the Board to provide a statement of reasons or bases consistent with that precedent. In August 2018, the Board remanded this matter for additional development, to include the performance of an additional VA examination and to obtain an opinion from the Director of Compensation with regard to the assignment of an extraschedular disability evaluation. At the time of the August 2019 examination, the Veteran was diagnosed as having GERD. The Veteran reported that every once in a while he had a little flare up. Other than that, he had been taking the same medication for years and really did not have any problems with it. He still required medication to control symptoms on a daily basis. He stated that four or more times per year he was awakened from sleep with the following symptoms: Epigastric burning, regurgitation, reflux, feeling of nausea and feeling like he was gasping for air. They persisted 1-2 hours and until the Veteran got up and walked around and drank a small glass of milk or took Pepto-Bismol. He stated that he kept Rolaids or TUMS by his nightstand. He elevated his head on 2 pillows all the time and when he laid back down he made sure his head was elevated when going back to sleep. The Veteran was noted to take continuous medication for his symptoms. The examiner noted that the Veteran had the following signs and symptoms: Infrequent episodes of epigastric distress, pyrosis, reflux, regurgitation, pain substernal, and sleep disturbance caused by esophageal reflux. The frequency of symptom recurrence per year was 4 or more with the average duration of episodes of symptoms lasting less than a day. The Veteran also had nausea more than 4 times per year lasting less than a day. Physical examination revealed the abdomen was soft and non-tender with active bowels sounds in all 4 quadrants. There was no palpable organomegaly. As to the Board's directives in the remand, specifically with regard to the examiner commenting on the absence or presence of the following: persistently recurrent epigastric distress; dysphagia; pyrosis; regurgitation; substernal or arm or shoulder pain; considerable impairment of health; vomiting; material weight loss; hematemesis or melena, the examiner commented see #3. The examiner further noted that that as to moderate anemia, see #6-None. As to the Board directive with regard to the examiner specifically being required to note the medication the Veteran took to control his gastrointestinal disorder, and to comment, to the extent possible, on the additional symptoms and related impairment that would be present without the relief provided by medication used to treat the condition, the examiner responded See #2. As to the examiner's responses to the specific directives, the Board is unsure as to what the responses See #3, See #2, and See #6 relate to or mean. The examination report did not contain any sections marked with these numbers. Moreover, these numbers did not provide answers to the questioned posed in the Board remand. As a result, the Board again remanded this matter for further development in August 2020 to obtain the requested information. In an October 2020 addendum opinion, the examiner indicated that the examination report was being prepared based upon a review of the records and that the examiner who had performed the August 2019 examination was not available to prepare an addendum report. A diagnosis of GERD was rendered. The examiner indicated that the Veteran was seen at the Wyoming CBOC for his health care. He used more than one pillow to sleep and his GERD would wake him from his sleep. Symptoms occurred a couple times per month. He avoided spicy foods and tomato-based foods, sometimes even a glass of water would cause GERD. He also avoided fried foods. His health was moderately impacted, depending on the day and what he had eaten. He denied issues with constipation or abdominal distress or cramping in bowel function associated with gastrointestinal disability. He did get diarrhea every other week and would have 2-3 bowel movements in a day and then it improved. He had times when he inadvertently forgot to take his medication for his stomach issues (Pantoprazole Na 40 mg EC QD) and he would have an increase in his GERD symptoms for that day until he took his pantoprazole. He also had to take Tums or Rolaids to supplement when at work, or depending on his diet and stomach issues, to help relieve breakthrough symptoms of GERD. This had been an ongoing condition for him over the years. Medications used for the diagnosed condition included pantoprazole 40 mg every day; Pepto-Bismol, Tums, Rolaids at least 3-4 times/month; and milk to coat the stomach. The examiner indicated that the Veteran had symptoms productive of considerable impairment of health; infrequent episodes of epigastric distress; pyrosis; reflux; regurgitation; substernal pain; and sleep disturbance caused by esophageal reflux. Frequency of symptom recurrence per year: 4 or more, average duration of episodes of symptoms: 1-9 days; nausea, frequency of episodes of nausea per year: 4 or more, average duration of episodes of nausea: less than 1 day. The examiner indicated that GERD cut into the Veteran's sleep time and impacted his ability. He did have times when he would use Tums to relieve issues. If the job required bending over he would get the acid reflux. The Veteran would miss work when he had a day the GERD was bothering him. The examiner stated that she did speak with the Veteran who indicated that his symptoms were similar to those in August 2019. He continued to have issues with reflux, regurgitation, and was awakened at night due to the reflux symptoms. He took daily medication for his GERD symptoms and supplemented it with Tums or Rolaids. He had symptoms a few times per month that would last all day. He was self-employed so he could take hours off when he did not feel well. The examiner indicated that the Veteran had continued issues with his GERD symptoms that impacted his health and sleep. He was able to work but had to miss work due to his symptoms or take supplemental over-the-counter Tums or Rolaids. This was an ongoing condition that he was taking medication for to relieve his symptoms. In a March 2021 remand, the Board noted that while the examiner commented on the symptoms caused by the service-connected GERD and stated that the Veteran was taking daily medication to control his GERD, she did not comment on what additional symptoms and related impairment would be present without the relief provided by medication used to treat the condition. The Board found that this was one of the specific bases for the original JMPR. In a March 2021 addendum opinion, the examiner indicated that without relief provided by medication, the Veteran would have following symptoms/impairment: epigastric burning, regurgitation, reflux, feeling of nausea and feeling like he was gasping for air, and substernal pain. These symptoms would persist 1-2 hours until the Veteran treated with the aforementioned remedies. Symptoms would affect sleep, therefore, Veteran kept head elevated. When sleep was disturbed, work as truck driver was impacted, including missing days of work and decreased productivity due to being tired. While the Board notes that the Veteran has numerous symptoms related to his GERD, there have been no findings of material weight loss, hematemesis, or melena with moderate anemia, or other symptom combinations productive of a severe impairment of health. Assessed in toto, the evidence more closely approximates the 30 percent criteria under DC 7346 as to any portion of the period on appeal. The criteria for a 60 percent evaluation, the next higher evaluation under 7346, have not been met or approximated. Extraschedular Generally, disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in VA's Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. However, to accord justice in the exceptional case where the criteria in VA's Rating Schedule are found to be inadequate, an extraschedular rating that is commensurate with the average earning capacity impairment caused by the service-connected disability is warranted. 38 C.F.R. § 3.321 (b)(1). Such a rating is warranted when the case presents such an unusual disability picture with related factors such as marked interference with employment as to render impractical the application of the regular schedular standards. Id. When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009). Rather, it must remand the claim to the AOJ for referral to the Director. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board did so in this case in April 2020. The AOJ referred the claim for an extraschedular rating to the Director. In an April 2020 decision, the Director denied an extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). The Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). The Court reaffirmed that the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). In an April 2020 Advisory opinion, it was noted that an August 2018 Board remand requested that a decision be made on an extra-schedular basis for a service-connected gastrointestinal disorder in excess of 10 percent (subsequently raised to 30 percent). The Veteran claimed a sleep disorder as a symptom of his gastrointestinal disorder. Sleep disorder was not included as an evaluation symptom under Diagnostic Code (DC) 7346. This warranted extra-schedular evaluation. The gastrointestinal disorder is characterized as gastroesophageal reflux disease (GERD) with ulceration, hiatal hernia-10 percent disabling effective October 23, 1991. The Veteran at the time of the advisory opinion had combined service-connected evaluations of 30 percent effective October 23, 1991, 40 percent effective February 16, 1991, 60 percent effective December 31, 2008. Additional service-connected conditions included asthma with COPD, bilateral hearing loss, tinnitus. The Director noted that the Board directed an additional VA examination be obtained to assess the severity of the service-connected GERD. That report was of record and dated August 1, 2019. The examiner confirmed the diagnosis as well as continuous Pantoprazole NA 40mg QD being taken for symptom control. Symptoms were infrequent episodes of epigastric distress, pyrosis, reflux, regurgitation, and substernal pain. In addition, nausea and sleep disturbance 4 or more times per year were reported with duration of episodes of symptoms less than 1 day. The examiner noted no episodes of moderate anemia, persistently recurrent epigastric distress, arm or shoulder pain, considerable impairment of health or material weight loss. The Veteran reported his symptoms were worse when he was working as a truck driver. Then, he had little control over his diet and hours of rest/sleep due to his employment obligations. A medical report from May 2, 2019 included the Veteran's report of GERD occurring about once every 3 months with no trouble with swallowing or abdominal pain. The Veteran was advised to avoid aggravating factors. Additional VAMC treatment from Battle Creek, MI for the period July 18, 2019 through March 6, 2020 were obtained and reviewed. The August 1, 2019 VA Esophageal Conditions Disability Benefits Questionnaire (DBQ) was repeated in this information. The Director indicated that these medical records did not support an evaluation greater than 10 percent for service-connected GERD. The Director noted that extra-schedular evaluations under 38 C.F.R. § 3.321(b)(1) were to be reserved for truly exceptional cases. Simply having additional impairment not reflected in the Rating Schedule was insufficient to establish an extra-schedular evaluation. The Rating Schedule was presumed to be sufficient for compensating the average impairment of earning capacity. To overcome that presumption, the evidence had to show additional impairment that applied specifically to the Veteran's unusual situation that would not be expected in the average veteran with that same disability. The Director indicated that it was important to note that this additional impairment may impact the Veteran in other ways than marked interference in employment or frequent periods of hospitalization, but any additional impairment must be clearly attributed to the SC disability, and be of an exceptional nature. The Director noted that extra-schedular evaluations were assigned in cases where an exceptional or unusual disability picture was presented with such related factors as marked interference with employment or frequent periods of hospitalization that rendered application of regular rating schedular standards impractical. The Director found that no unusual or exceptional disability pattern had been demonstrated that would render application of the regular rating criteria as impractical. The Director of Compensation Service determined the available medical evidence did not support a higher evaluation on an extra-schedular basis for a service-connected GERD greater than 10 percent disabling (which was subsequently raised to 30 percent). The Board does acknowledge that the rating code does not take into account the Veteran's sleep impairment. Significantly, the VA examiner noted that when sleep is disturbed, work as truck driver is impacted, including missing days of work and decreased productivity due to being tired. Thus, the evidence shows symptoms not contemplated by the rating criteria that cause marked interference with employment. Therefore, the Board finds that an extraschedular rating is warranted. The only remaining question is what rating should be assigned. As noted by the Court, "[b]ecause the nature of extraschedular consideration requires that the disability picture be unique and not contemplated by the rating schedule, there logically is no guidance as to the specific rating that should be assigned in any particular case." Kuppamala, (citing Floyd v. Brown, 9 Vet. App. 88, 97 (1996)). The criteria for rating the Veteran's current disorder provides for a maximum schedular rating of 60 percent. Given the evidence establishing that his sleep impairment causes additional disability and further occupational restriction, the Board finds that an extraschedular rating of 20 percent for sleep impairment is warranted. Even with consideration of the impairment not addressed in the rating code, the Veteran's symptom combinations productive of severe impairment of health, required for a 60 percent evaluation, have not been demonstrated. As the preponderance of the above evidence reflects that an extraschedular rating higher than 20 percent is not warranted, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly, 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.