Citation Nr: 21031465 Decision Date: 05/22/21 Archive Date: 05/22/21 DOCKET NO. 12-03 259 DATE: May 22, 2021 ORDER Entitlement to a 40 percent disability rating, but no higher, under Diagnostic Code 7306 prior to January 30, 2020, for peptic ulcer disease with irritable bowel syndrome with mild diverticulosis (IBS) is granted. Entitlement to a rating higher than 40 percent from January 30, 2020 for peptic ulcer disease with irritable bowel syndrome with mild diverticulosis (IBS) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to January 30, 2020, the Veteran's IBS was moderately severe; manifested by intercurrent episodes of abdominal pain at least once a month partially or completely relieved by ulcer therapy, mild and transient episodes of vomiting or melena. A new Diagnostic Code, 7306, is assigned prior to January 30, 2020 for the Veteran's IBS. 2. From January 30, 2020, the Veteran's IBS was not manifested as severe duodenal ulcer; pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health. 3. From January 30, 2020, the Veteran has been awarded a 100 percent schedular evaluation; therefore, the claim for TDIU is moot; the Veteran also has been awarded SMC from January 30, 2020. CONCLUSIONS OF LAW 1. The criteria for 40 percent disability rating, but no higher, under Diagnostic Code 7306 prior to January 30, 2020, for IBS have been met. 38 U.S.C. § 1155, 5107 (b) (2012); 38 C.F.R. § 4.1, 4.2, 4.20, 4.113, 4.114 Diagnostic Code 7305-7319 (2019). 2. The criteria for a rating in excess of 40 percent from January 30, 2020, for IBS have not been met. 38 U.S.C. § 1155, 5107 (b) (2012); 38 C.F.R. § 4.1, 4.2, 4.20, 4.113, 4.114 Diagnostic Code 7305-7319 (2019). 3. The claim for TDIU is rendered moot from January 30, 2020, by the assignment of a 100 percent schedular rating. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 3.102, 3.303(a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1980 to July 1980, from September 1981 to May 1990, and from December 1990 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. Jurisdiction now rests in Reno, Nevada. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in March 2012. A transcript of the hearing is of record. The Board remanded this issue in September 2014 and June 2017. In a December 2019 decision, the Board denied the Veteran's increased rating claim for his IBS. The Veteran appealed the Board's December 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2020 Order, the Court vacated the December 2019 decision and remanded to the Board for further development. The Board notes that the issue of TDIU has been explicitly raised by the Veteran following the December 2020 Order. 1. Entitlement to a 40 percent disability rating, but no higher, under Diagnostic Code 7306 prior to January 30, 2020, for peptic ulcer disease with irritable bowel syndrome with mild diverticulosis (IBS) and entitlement to a 40 percent from January 30, 2020 for peptic ulcer disease with irritable bowel syndrome with mild diverticulosis (IBS) Disability ratings 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 there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 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). See also 38 C.F.R. §§ 4.1, 4.2. As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. Pursuant to 38 C.F.R. § 4.113, certain 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 38 C.F.R. § 4.14." Id. 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 that 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 is currently evaluated for irritable bowel syndrome with mild diverticulosis and peptic ulcer disease at 30 percent under 38 C.F.R. § 4.114, Diagnostic Code 7305-7319. Hyphenated codes are intended to show that the Veteran's service-connected disability is rated by analogy. See 38 C.F.R. § 4.20 (an unlisted condition may be rated under a closely related disease or injury in which the functions affected, anatomical localization, and symptomatology are closely analogous). Under Diagnostic Code 7319, a 30 percent evaluation is warranted for irritable colon syndrome with severe diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. This is the maximum rating under Diagnostic Code 7319. Under Diagnostic Code 7305, a 40 percent evaluation is warranted for a moderately severe duodenal ulcer; less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least 4 or more times a year. A 60 percent evaluation is warranted for a severe duodenal ulcer; pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health. Prior to January 30, 2020 In February and April 2007 VA treatment records, the Veteran weighed 160.6 and 159.8 pounds, respectively. In a July 2008 VA examination, conducted in connection with a previous claim, the Veteran said he could not say why he put in a claim for an increase in service-connected ulcer disease, other than he had GERD symptoms if he did not take medication and he had abdominal cramping for past 3 days. The Veteran said he had some nausea and vomiting 3 days ago. There was no hematemesis. He said he had recently lost 5 to 10 pounds. The Veteran' weight was noted as 155 pounds. There was no recent diarrhea and no constipation. There was no history of hospitalization or surgery, trauma, neoplasm, or periods of incapacitation due to stomach or duodenal disease. There was weekly gnawing pain that occurred before eating, one to several hours after eating, and at night. The Veteran reported generalized bloating. The Veteran reported episodes of hematemesis or melena several years ago, but could not remember when. There was a history of nausea and vomiting that occurred less than weekly. There was no history of diarrhea. The Veteran reported getting heartburn if he forgot to take his medication. There were no signs of significant weight loss or malnutrition or anemia. The Veteran had abdominal tenderness. There was tenderness in right lower quadrant (RLQ) without rebound or guarding. "Very, very, slight" epigastric tenderness without rebound or guarding was noted. He was non-tender in the rest of the abdomen, including nontender in right upper quadrant (RUQ). There was no history of appendicitis. The examiner concluded that the Veteran had history of peptic and/or duodenal ulcer; however, there was no evidence of a current ulcer. The Veteran had a history of GERD that persisted if he did not take medication. RLQ abdominal pain, and the symptoms he described as occurring over the past 3 days, were not consistent with recurrence of ulcers, there was no diagnosis for today's RLQ pain because it was so mild, no peritoneal signs on exam, it had been present for less than 24 hours and had not had it before the examination. In an October 2008 VA treatment record, it was noted that the Veteran weighed 149 pounds, which was down from 157 pounds. The Veteran's current claim for an increased rating was submitted in December 2009. In a December 2009 VA treatment record, the Veteran weighed in at 158.1 pounds. In an April 2010 VA treatment record, the Veteran reported stomach pain due to ulcer. In a May 2010 VA examination, it was noted that the Veteran was last examined in July 2008, but at the time he had no signs or symptoms of ulcers. He was having heartburn (GERD) symptoms. He said he still had heartburn and sometimes got a stomach ache. The Veteran took medication daily, but still had heartburn "a little bit." There was no history of hospitalization or surgery, trauma to the digestive system, neoplasm, hernia surgical repair, injury or wound related to hernia, or tuberculosis of the peritoneum. Upon examination, there was no hernia present and the abdominal exam was normal. It was noted that the Veteran was not anemic and a December 2009 CT scan associated with the examination found that the Veteran had mild colonic diverticulosis without evidence of diverticulitis; duodenal diverticulum. The examiner noted that there was a history of ulcer, but none present. In a May 2011 VA treatment record, a history of peptic ulcer disease was noted and the Veteran continued medication. The Veteran was noted to weigh 160.5 pounds In an October 2011 RO hearing, the Veteran testified he had sour taste and gas pains. He reported regurgitation and said he took medication. At the March 2012 Board hearing, the Veteran testified that over the years the episodes and severe symptoms of his ulcer had been more than 2 or 3 times per year. He said he saw a doctor for his ulcer, and complained of chest pain, sour stomach, and loose bowel movement. The Veteran reported that he took mediation for gas pain. He also reported that sometimes he took more medication than prescribed because he did not have any relief from certain symptoms. He continued to have a sour stomach. The Veteran then stated that his symptoms had become more severe, more than 3 or 4 times per year. In a March 2012 VA treatment record, it was noted that the Veteran was diagnosed with an ulcer in the past but had never undergone endoscopy. The Veteran described loose stools, most of the time described as diarrhea and denied any weight loss or blood in stools. In a November 2012 VA treatment record, the Veteran weighed 162 pounds. In an October 2014 VA examination, the examiner noted that a November 2012 treatment note showed that the Veteran had chronic upset stomach and had an EGD and colonoscopy done in July. His EGD showed healed peptic ulcer disease and Barrett's esophagus. The Veteran reported that he took continuous medication. The Veteran described persistently recurrent epigastric distress, reflux, regurgitation, and sleep disturbance caused by esophageal reflux. Frequency of symptoms recurrence per year was 4 or more with average duration of less than 1 day. The Veteran had nausea 4 or more times per year that lasted less than 1 day. The examiner noted that the Veteran's Barrett's esophagus was a progression of the acid reflux and peptic ulcer disease. In an August 2016 VA treatment record, the Veteran weighed 165.1 pounds. In an October 2016 VA treatment record, it was noted that the Veteran "gained some weight?" In a January 2017 VA treatment record, the Veteran complained of and was assessed with hematemesis. In a separate January 2017 VA treatment record, the Veteran was seen for vomiting blood. There was no constipation or diarrhea. He complained of coffee ground emesis, and the Veterans wife reported that he had 5 episodes of coffee ground emesis since last night. There was intermittent abdominal pain. The Veteran took medication daily. The Board notes that the Veteran was hospitalized for 5 days from January 16, 2017, to January 21, 2017. The Veteran was given the following discharge diagnoses: acute hematemesis, status post EGD with normal result; severe muscle neck spasm with significant degenerative disc disease; leukocytosis, resolved; hypokalemia, replaced; history of PUD, no new events; GERD; gout; hypertension essential, control; history of TIA; new diagnosis of bronchiectasis; elevated CRP, ESR. In a separate February 2017 VA treatment record, the Veteran reported that he was seen for a bleeding gastric ulcer 2 weeks earlier and was taking a PPI. The VA physician noted that the Veteran had a PPI of omeprazole already prescribed and so the Veteran seemed to be referring to this medication. In an April 2017 VA treatment record, the Veteran said in January he was hospitalized with an episode of vomiting blood said that "his bleeding ulcer he states he underwent upper and lower endoscopy but they didn't find anything." In an October 2017 VA treatment record, the Veteran reported a history of peptic ulcers and presented with reports of black stool for several months. In a February 2018 VA treatment record, the Veteran weighed 167 pounds. The Board notes that the Veteran was afforded a VA examination in April 2018 for intestinal conditions. The examiner only noted diagnoses of irritable bowel syndrome and mild diverticulosis; however, the Board will still address this examination for his peptic ulcer disease as the Veteran's condition was combined with his additional intestinal conditions during the period on appeal for rating purposes following this examination. Continuous medication was required. The Veteran reported alternating diarrhea and constipation with diarrhea lasting 3 to 5 days and then constipation lasting also 3 to 5 days. The Veteran also reported abdominal gas and distension, nausea, and vomiting, which could occur 1 to 2 times per week. There was more or less constant abdominal distress, with 7 or more episodes of exacerbations and/or attacks in the past 12 months. There was no weight loss, malnutrition, serious complications or other general health effects attributable to the intestinal condition, or benign or malignant neoplasm or metastases. In a June 2018 rating decision, the RO re-characterized the Veteran's claim and combined the Veteran's peptic ulcer disease claim with his irritable bowel syndrome with mild diverticulosis when granting service connection for undiagnosed illness manifested by stomach problems, as, sour taste in mouth, and occasional diarrhea, and assigning a 30 percent disability rating. The RO noted that many of the Veteran's symptoms could be attributed to irritable bowel syndrome, mild diverticulitis, and peptic ulcer disease. In a November 2019 VA treatment record, no recent weight loss was noted. Additional treatment records showed the Veteran's weight; however, these readings showed minimal variation, within 1 to 5 pounds. Specifically, in February 2019, the Veteran weighed 162.3 pounds, in September 2019 he weighed 164 pounds, in November 2019, he weighed 166 pounds, and in February 2020, he weighed 165 pounds. From January 30, 2020 In a March 2020 VA examination, the Veteran reported symptoms of alternating diarrhea and constipation, passing gas, and bloating. He described it as moderate to severe and occurring almost every day. The Veteran took continuous medication for his condition. The examiner noted the following symptoms: alternating diarrhea and constipation; abdominal distension; nausea; and vomiting. The Veteran had frequent episodes of bowel disturbance with abdominal distress. There was no evidence of weight loss attributable to an intestinal condition. There was also no evidence of malnutrition, serious complications or other general health effects attributable to the intestinal condition or benign or malignant neoplasm or metastases. The examiner determined that the Veteran had a worsening of symptoms. The Board notes that in a July 2020 rating decision, the Veteran's IBS disability rating was increased from 30 to 40 percent disabling effective January 30, 2020. Overall, and giving the Veteran the benefit of the doubt, the Board finds that a 40 percent disability rating (but no higher) should be assigned for the Veteran's IBS under a new Diagnostic Code 7306 prior to January 30, 2020. From January 30, 2020, a rating in excess of 40 percent is not warranted. The Board finds that prior to January 30, 2020, there is evidence that the Veteran's condition was found to be moderately severe, manifested by symptoms comparable to vomiting and nausea occurring 1 to 2 times per week and diarrhea and then constipation lasting 3 to 5 days. Under Diagnostic Code 7306 (marginal (gastrojejeunal) ulcers), a 40 percent rating is assigned for moderately severe impairment in the form of intercurrent episodes of abdominal pain at least once a month, partially or completely relieved by ulcer therapy, or mild and transient episodes of vomiting or melena. 38 C.F.R. § 4.114. A 100 percent rating is assigned for pronounced impairment in the form of periodic or continuous pain unrelieved by standard ulcer therapy with periodic vomiting, recurring melena or hematemesis, and weight loss, that is totally incapacitating. Id. A 60 percent rating is assigned for severe impairment in the form of the same symptoms as the 100 percent rating, but less pronounced, less continuous, and with definite impairment of health. Id. The Board finds the Veteran's episodes of vomiting to be mild and transient. The evidence does not show the Veteran's episodes of vomiting to be severe to suggest a definite impairment in health. Thus, a 40 percent disability rating but no higher is warranted under Diagnostic Code 7306. Initially, as noted above, pyramiding is prohibited; therefore, the Board must assign a separate rating, removing the old rating code Diagnostic Code 7305 prior to January 30, 2020. The Board notes that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. The Board must now determine whether the modification of the diagnostic code may be considered a severance. Recognizing instances where the Board has rated a Veteran's disability under a different diagnostic code than previously rated, the Court has similarly indicated that there may be times when a change in diagnostic code is not equivalent to a severance. See Gifford v. Brown, 6 Vet. App. 269, 271 (1994) (a simple, non-substantive administrative correction showing the injury causing disability was to a different part of the body than that reflected in the initial rating "did not result in a new rating or the severance of the old rating"). In Read v. Shinseki, 651 F.3d 1296 (Fed. Cir. 2011), the Federal Circuit noted that the purpose of section 1159 was to protect veterans with long-standing determinations of service connection from suddenly having that determination stripped. It found that to determine that the change of the situs of the disability (or the diagnostic code associated with it) was a severance of one service-connected disability and the establishment of another, where the cause of the disability and the resultant functional impairment were the same, would "ill-serve the purpose of the statute." The Federal Circuit also found its view was consistent with the interpretation of the statute by VA General Counsel (in VAOPGCPREC 50-91 and 13-92) and by the Court in Gifford v. Brown, 6 Vet. App. 269 (1994). See Read, supra. As such, the Board finds that the change in diagnostic codes from Diagnostic Code 7305 to Diagnostic Code 7306 prior to January 30, 2020, does not constitute a severance. Instead, the diagnostic code assigned is a more accurate descriptor of the Veteran's service-connected disability and symptoms. Additionally, the change has not resulted in any reduced benefit to the Veteran. However, from January 30, 2020, there is no evidence that the Veteran's condition was severe with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health. Rather, the March 2020 VA examiner found that the Veteran had alternating diarrhea and constipation; abdominal distension; nausea; and vomiting. The Veteran had frequent episodes of bowel disturbance with abdominal distress. There was no evidence of weight loss attributable to an intestinal condition. There was also no evidence of malnutrition, serious complications or other general health effects attributable to the intestinal condition or benign or malignant neoplasm or metastases Additionally, the Board notes that at the July 2008 VA examination that the Veteran reported losing 5 to 10 pounds. VA treatment records show that in 2007, he was 159 to 160 pounds. At the July 2008 VA examination, the Veteran was 155 pounds. In an October 2008 VA treatment record, the Veteran was 149 pounds down from 157 pounds on the last visit. In a December 2009 VA treatment record, the Veteran was 158.1 pounds. A May 2011 VA treatment record showed that the Veteran weighed 160.5 pounds. A November 2012 VA treatment record showed that the Veteran weighed 162 pounds. An August 2016 VA treatment record showed that the Veteran weighed 165.1 pounds. In a February 2018 VA treatment record, the Veteran weighed 167 pounds. In February 2019, the Veteran weighed 162.3 pounds, in September 2019 he weighed 164 pounds, in November 2019, he weighed 166 pounds, and in February 2020, he weighed 165 pounds. Diagnostic Codes 7306 and 7308 provide higher ratings for a digestive condition when there is associated weight loss. Under Diagnostic Code 7308 (for postgastrectomy symptoms), a 40 percent rating is assigned for moderate symptoms, with less frequent episodes of gastric disorders with characteristic mild circulatory symptoms after meals but with diarrhea and weight loss. A 60 percent rating is assigned for severe symptoms, classified as nausea, sweating, circulatory disturbances after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia. 38 C.F.R. § 4.114. With respect to higher ratings under Diagnostic Code 7306, while the Veteran was shown to have sporadic weight loss, the evidence does not show symptoms so severe or pronounced that they were totally incapacitating. The Veteran did not have periodic or continuous pain unrelieved by standard ulcer therapy with periodic vomiting, recurring melena or hematemesis, and weight loss. With respect to a higher ratings under Diagnostic Code 7308, again, while there was weight loss, there was no history of diarrhea at the time of weight loss, and the evidence shows that in fact the Veteran began to gain weight throughout the appeal period. The evidence did not show severe symptoms with definite impairment in health, or severe symptoms with malnutrition and anemia. Overall, the record did not find that the Veteran suffered from malnutrition The Board has also considered the other Veteran's symptoms of vomiting, nausea, diarrhea, constipation, and hematemesis. However, the Board does not find that these symptoms were so severe so as to warrant higher ratings. Specifically, prior to and from January 30, 2020, the Veteran symptoms were not shown to be severe. The Veteran himself described his symptoms as moderate to severe at the March 2020 VA examination, suggesting that the symptoms can vary in intensity depending and are likely more aligned with moderately severe than severe. The Board acknowledges that the Veteran reported episodes of hematemesis or melena, but could not remember when, and indicated that it was several years earlier, prior to July 2008. Additionally, despite the treatment for acute hematemesis in January 2017, this was not recurring. The Board acknowledges the Veteran's lay statements; however, there is no indication that the Veteran's IBS is severe based on the consistent, probative and competent evidence of record. Therefore, although the Board has granted a higher 40 percent disability rating under Diagnostic Code 7306 for IBS prior to January 30, 2020, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent from January 30, 2020 for IBS. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (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). 2. Entitlement to a total disability rating based on individual unemployability on a schedular and extraschedular basis (TDIU) The Veteran filed a claim for TDIU in January 2020. Initially, the Board notes that the claim of entitlement to TDIU has been rendered moot from January 30, 2020, by the award of a 100 percent schedular evaluation for the service-connected gout condition. See Bradley v. Peake, 22 Vet. App. 280 (2008). (Continued on the next page) The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley, 22 Vet. App. at 294. However, the Board notes that SMC has also been awarded from January 30, 2020. Thus, the Veteran receives the maximum benefits allowable and the issue of TDIU from January 30, 2020 is moot. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Saudiee Brown 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.