Citation Nr: 22016154 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 16-35 690 DATE: March 21, 2022 ORDER An initial disability rating of 30 percent is granted for gastroesophageal reflux disease (GERD) with gastritis, dyspepsia, diarrhea, and hematochezia for the period from March 4, 2010 to August 21, 2021. A disability rating in excess of 30 for GERD with gastritis, dyspepsia, diarrhea, and hematochezia is denied beginning August 21, 2021. An initial compensable disability rating for hemorrhoids is denied. An initial 10 percent disability rating is granted for right hallux valgus for the period from March 4, 2010 to August 21, 2021. A disability rating in excess of 10 percent for right hallux valgus beginning August 21, 2021 is denied. An initial 10 percent disability rating is granted for left hallux valgus for the period from March 4, 2010 to August 21, 2021. An initial disability rating in excess of 10 percent for left hallux valgus beginning August 21, 2021 is denied. REMANDED Entitlement to an increased rating for a lumbar spine disability, rated as 10 percent disabling from March 4, 2010 to August 21, 2021, and as 40 percent disabling thereafter, is remanded. Entitlement to an increased rating for right lower extremity radiculopathy, currently rated as 20 percent disabling is remanded. Entitlement to an increased rating for a left knee disability, currently rated as 10 percent disabling, is remanded. Entitlement to an increased rating for a right knee disability, currently rated as 10 percent disabling, is remanded. Entitlement to an increased rating for right hip arthritis, currently rated as 10 percent disabling, is remanded. FINDINGS OF FACT 1. Throughout the appeals period, irritable bowel syndrome (IBS) has been the predominant disability of the digestive system, and has been manifested by ongoing diarrhea, abdominal pain, and abdominal distress. 2. Throughout the appeals period, the Veteran's hemorrhoids were not large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. 3. Throughout the appeal, the Veteran has had actually painful right hallux valgus with functional impairment. 4. Throughout the appeal, the Veteran has had actually painful left hallux valgus with functional impairment. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating for service-connected GERD with gastritis, dyspepsia, diarrhea, and hematochezia for the period from March 4, 2010 to August 21, 2021 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.31, 4.114, Diagnostic Codes 7319, 7346. 2. The criteria for rating in excess of 30 percent for service-connected GERD with gastritis, dyspepsia, diarrhea, and hematochezia have not been met at any time over the appeals period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.31, 4.114, Diagnostic Codes 7319, 7346. 3. The criteria for a compensable rating for service-connected hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.31, 4.114, Diagnostic Code 7336. 4. For the period from March 4, 2010 to August 21, 2021, the criteria for a rating of 10 percent for right hallux valgus were met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5280. 5. The criteria for a rating in excess of 10 percent for right hallux valgus have not been met at any time over the appeals period. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5280. 6. For the period from March 4, 2010 to August 21, 2021, the criteria for a rating of 10 percent for left hallux valgus were met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5280. 7. The criteria for a rating in excess of 10 percent for left hallux valgus have not been met at any time over the appeals period. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5280. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from February 2001 to March 2010, and from June 2011 to June 2014. The Veteran testified at a hearing before the undersigned Acting Veterans Law Judge in April 2021. A transcript of the hearing has been associated with the record. As an initial matter, at the April 2021 hearing, the Veteran presented testimony regarding her neurological symptoms in her right lower extremity associated with her service-connected lumbar spine disability. Subsequently, she was awarded a separate disability rating for radiculopathy of the right lower extremity. As this is directly related to her service-connected lumbar spine disability, and she has testified as to its severity, the issue of entitlement to an initial disability rating in excess of 20 percent for service-connected right lower extremity radiculopathy is under consideration. See Chavis v. McDonough, 34 Vet. App. 1, 33-34 (2021). INCREASED RATINGS Disability evaluations 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 the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. INCREASED RATING - GERD, GASTRITIS, DYSPEPSIA, DIARRHEA AND HEMATOCHEZIA The Veteran is service connected for GERD with IBS and gastritis. For the period from March 4, 2010 to August 21, 2021, her disability was rated under Diagnostic Codes 7399-7346. An unlisted disease, injury, or residual condition is rated by analogy with the first two digits selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be 99 for all unlisted conditions. 38 C.F.R. § 4.27. In this case, there is no diagnostic code specifically applicable to GERD. It is rated by analogy under Diagnostic Code 7346, pertaining to hiatal hernia. Under Diagnostic Code 7346, GERD with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health is rated at a 60 percent disability rating, GERD with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health are rated at a 30 percent disability rating, and GERD with two or more of the symptoms for the 30 percent evaluation of less severity is rated at a 10 percent disability rating. 38 C.F.R. § 4.114, Diagnostic Code 7346. Since August 21, 2021, the Veteran's disability has been rated under Diagnostic Code 7319, pertaining to irritable colon syndrome. Under Diagnostic Code 7319, severe IBS with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress is rated at a 30 percent disability rating, moderate IBS with frequent episodes of bowel disturbance with abdominal distress is rated at a 10 percent disability rating and mild IBS with disturbances of bowel function with occasional episodes of abdominal distress is rated at a noncompensable disability rating. The Board notes that the Veteran has contended that her IBS and GERD warrant separate ratings, as they are distinct disabilities with symptoms that do not overlap. However, while the Board appreciates her contentions and understands her argument, the regulation is clear. 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. As such, the Veteran's disability is rated under the criteria for GERD or IBS, based on which disability is predominant, or more severe. 38 C.F.R. § 4.114. The Veteran was provided with a VA examination in May 2010. With regard to IBS, she reported flare-ups of abdominal cramping with bouts of diarrhea that occurred on average once or twice a month. Abdominal pain and diarrhea typically lasted between 30 minutes to one hour. With regard to GERD and gastritis, the Veteran reported heartburn with flare-ups on average on a weekly basis. Heartburn usually occurs in the morning. The Veteran did not have regurgitation, nausea, or vomiting. The Veteran was provided with another VA examination in June 2016. With regard to IBS, she reported that she had an episode of diarrhea with abdominal cramping once a month. With regard to GERD and gastritis, she had burning chest pain twice weekly and indigestion four times per week in spite of Nexium. GERD symptoms included persistently recurrent epigastric distress, regurgitation, and substernal pain. At her hearing, the Veteran testified that she began experiencing symptoms of IBS in 2008. She indicated that, after eating, she experienced extreme abdominal cramps followed by severe diarrhea. She had to modify her lifestyle in that she did not leave the house after she ate because her IBS has been unpredictable and she began having instances of defecating on herself. She reported that these instances occurred two to three times a month. The Veteran was provided with VA examinations in August 2021. With regard to GERD and gastritis, she reported recurring episodes of severe symptoms of periodic abdominal pain, anemia, and weight loss four or more times per year, lasting less than one day. In addition, she experienced persistently recurrent epigastric distress, reflux, and pain in the substernal arm. She had four or more incapacitating episodes per year lasting less than one day, and sleep disturbance caused by esophageal reflux four or more times per year lasting less than one day. She denied nausea, vomiting, hematemesis, melena, and esophageal stricture. With regard to IBS, she reported that, two to three times per week after eating, she would experience strong stomach cramps at a pain level of 7 out of 10, and fierce diarrhea. She also reported abdominal bloating two to three times per week. she denied nausea, anemia, vomiting, or alternating diarrhea and constipation. Her abdominal cramping was so severe, she reported that she would be bent over in pain and would then have extreme diarrhea. She reported that she had defecated on herself more than once. She indicated that the experienced seven or more exacerbations or attacks over the prior 12 months. She had no malnutrition, complications and other general health effects or other pertinent physical findings, complications, conditions, signs, symptoms, or scars. The Board finds that, based on the evidence of record and the Veteran's competent testimony reflecting her symptoms, the predominant disability has been IBS throughout the appeals period. As noted above, a 30 percent rating is warranted for symptoms of diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. Here, the Veteran has reported that she has bouts of severe abdominal pain and diarrhea and recurrent abdominal distress. This set of symptoms more closely approximates the rating criteria for a 30 percent rating for IBS. A 30 percent rating is the highest rating available under Diagnostic Code 7319 for IBS. The evidence does not show that GERD is the predominant disability or that the 60 percent criteria for GERD are met. As noted above, in order to meet or approximate the criteria for a 60 percent disability rating for GERD, the evidence would need to show that her GERD resulted in pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. In this case, the Veteran's GERD has not caused vomiting, hematemesis or melena and has not been productive of severe impairment of health. As such, a higher rating based on GERD would not be warranted. A rating of 30 percent based on the symptoms associated with IBS throughout the appeals period is warranted. INCREASED RATING - HEMORRHOIDS The Veteran's service-connected hemorrhoids are rated at a noncompensable rating throughout the appeals period under Diagnostic Code 7336. Under this Diagnostic Code, hemorrhoids, external or internal, with persistent bleeding and with secondary anemia, or with fissures are rated at a 20 percent disability rating, hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences are rated at a 10 percent disability rating, and hemorrhoids that are mild or moderate are rated at a noncompensable disability rating. The Veteran was provided with a VA examination in May 2010. She reported flare-ups of rectal bleeding once or twice a month. She never had a procedure for her hemorrhoids and she does not report a history of thrombosed hemorrhoids. The examiner diagnosed chronic hematochezia at least as likely as not caused by hemorrhoids. She did not have external hemorrhoids on examination. The Veteran was provided with a VA examination in June 2016. She reported continuing problems with rectal bleeding two to three times per month that lasted less than 24 hours. She treated the condition by taking stool softeners and eating fiber. The examiner noted mild to moderate hemorrhoids with infrequent rectal bleeding and pain with large bowel movements. There were no extremal hemorrhoids upon examination, but the examiner noted a small internal hemorrhoid by digital rectal examination. There were no other pertinent physical findings, complications, conditions, signs or symptoms related to hemorrhoids. At her hearing, the Veteran testified that her hemorrhoids were inflamed and that she had bleeding with hard bowel movements averaging once per week. The Veteran was provided with a VA examination in August 2021. She reported that she was not on continuous medication for her internal hemorrhoids and she declined a physical examination. The Board finds that the Veteran's hemorrhoid condition has been of a similar nature and severity throughout the period on appeal. Further, the Veteran's own testimony of her symptoms is supported by her VA examinations. However, the Board finds that the nature and severity of the Veteran's hemorrhoid condition does not more closely approximate the criteria for a compensable rating. The rating criteria specify that mild or moderate hemorrhoids are to be rated as noncompensable. A 10 percent rating requires hemorrhoids be large or thrombotic, irreducible, with excessive redundant tissue, none of which are supported by the evidence in the Veteran's case. The record further does not support that the Veteran's hemorrhoids involve persistent bleeding and with secondary anemia, or with fissures. The Board acknowledges all of the symptoms reported by the Veteran, including irritation and bleeding with hard bowel movements. The Board finds the Veteran's testimony competent and credible. However, a preponderance of the evidence is against finding that the Veteran's symptoms, as she has described them, meet or more closely approximate the criteria for a compensable rating under Diagnostic Code 7336. Based on the forgoing, the Board finds that the Veteran's appeal for a compensable rating for his service-connected hemorrhoids must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). INCREASED RATINGS HALLUX VALGUS The Veteran's right and left hallux valgus are rated as noncompensable prior to August 21, 2021 and at 10 percent ratings for each foot beginning August 21, 2021. Hallux valgus, unilateral, warrants a 10 percent rating when operated with resection of the metatarsal head, or if severe and the equivalent of amputation of the great toe. 38 C.F.R. § 4.71A, Diagnostic Code 5280. Effective February 7, 2021, VA amended the rating schedule; however, DC 5280 was unchanged. Under Diagnostic Code 5280, a maximum 10 percent rating is warranted for unilateral hallux valgus severe, if equivalent to amputation of great toe. A maximum 10 percent rating is also warranted for unilateral hallux valgus operated with resection of metatarsal head. 38 C.F.R. § 4.71a, Diagnostic Code 5280. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). Here, the evidence shows the right and left hallux valgus are manifested by pain with functional impairment that warrants an initial 10 percent evaluation for an actually painful joint throughout the appeal period. See Id. The Veteran was provided with a VA examination in May 2010. In regard to her bunions, she reported constant pain, but no treatment was given. She however had been wearing an extra size shoe because of her bilateral bunions and little toe fracture. She has mild hallux valgus and the range of motion in her metatarsophalangeal joint is as follows: Dorsiflexion 45-50 degrees, plantar flexion is 45-50 degrees as well. These are quite free and there is no pain. The joints are stable and there is no significant tenderness. The Veteran was provided with a VA examination in June 2016. She continues to have bunions and reported ongoing bilateral foot pain at a level of 3 out of 10 four times per month for two days. The examiner noted that pain caused functional loss in that she had pain with walking and if her shoes were too tight and generally wore men's shoes. At her hearing, the Veteran testified that she had ongoing significant pain due to her bunions. The Veteran was provided with a VA examination in August 2021. She reported aching or shooting pain at the bunion with shoes on or off, which was worse while wearing boots. She indicated that she could not wear most shoes for long periods of time. Pain was severe five times per week all day. The Board finds that the Veteran's service-connected bilateral hallux valgus meet the criteria for 10 percent disability ratings for each foot throughout the appeals period. The Veteran has consistently reported pain and is competent to do so. The available records consistently demonstrate that throughout the appeal, the Veteran has had pain associated with her bilateral hallux valgus with functional impairment, thus meeting the criteria for a minimum 10 percent evaluation. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). For these reasons, the criteria for initial 10 percent disability ratings for bilateral hallux valgus are met. As a 10 percent rating is the maximum rating under Diagnostic Code 5280, a rating higher than 10 percent under this diagnostic code is not available. There is no other diagnostic code applicable to rating this disability. See Copeland v. McDonald, 27 Vet. App. 333, 336 (2015) (the Court finding that the eight foot conditions specifically listed under 38 C.F.R. § 4.71a could not be rated under Diagnostic Code 5284 (other foot injuries)). EXTRASCHEDULAR Additionally, the Board notes that the Veteran and her representative have raised entitlement to an extraschedular rating. When determining whether a referral for an extraschedular rating is warranted, the first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture. See Thun v. Peake, 22 Vet. App. 111 (2008). If the schedular criteria do not contemplate the level of disability and symptomatology shown and are found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. Id. As explained above, the Veteran's symptoms and their resultant effects are fully contemplated in the schedular rating criteria and therefore do not present such an exceptional or unusual disability picture such that referral for an extraschedular rating is warranted. REASONS FOR REMAND INCREASED RATINGS LUMBAR SPINE, RIGHT AND LEFT KNEES, AND RIGHT HIP DISABILITIES Pursuant to the Board's July 21, 2021 remand directives, the Veteran was provided with VA examinations in August 2021 to determine the current severity of her service-connected lumbar spine, right and left knees, right and left hallux valgus, and right hip disabilities. These examinations are inadequate as they are internally inconsistent. For each disability, the examiner noted the Veteran's reports of functional loss during flare-ups and after repetitive movement over time due to pain. However, later in each examination report, the examiner indicated that the procured evidence, which included statements from the Veteran, did not suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability during flare-ups or with repeated use over time. Despite evidence that the Veteran experienced additional functional loss during flare-ups and after repetitive use over time, the examiner did not describe the functional loss or provide estimated additional limitation of motion during these periods and did not explain why it was not possible to do so. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected lumbar spine disability. The examiner 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. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. In addition, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. This can be established by lay reports from the Veteran. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should note that the August 2021 examination reports have been determined to be inadequate as the examiner noted the Veteran's reports of functional loss during flare-ups and after repetitive movement over time due to pain but later indicated that the procured evidence, which included statements from the Veteran, did not suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability during flare-ups or with repeated use over time. The examiner did not provide estimations as to functional impairment. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected right and left knee disabilities. The examiner 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. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. In addition, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. This can be established by lay reports from the Veteran. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should note that the August 2021 examination reports have been determined to be inadequate as the examiner noted the Veteran's reports of functional loss during flare-ups and after repetitive movement over time due to pain but later indicated that the procured evidence, which included statements from the Veteran, did not suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability during flare-ups or with repeated use over time. The examiner did not provide estimations as to functional impairment. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected right hip disability. The examiner 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. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. In addition, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. This can be established by lay reports from the Veteran. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should note that the August 2021 examination reports have been determined to be inadequate as the examiner noted the Veteran's reports of functional loss during flare-ups and after repetitive movement over time due to pain but later indicated that the procured evidence, which included statements from the Veteran, did not suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability during flare-ups or with repeated use over time. The examiner did not provide estimations as to functional impairment. M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Harrigan Smith 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.