Citation Nr: 22018222 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 09-27 753A DATE: March 28, 2022 ORDER Entitlement to an initial rating in excess of 30 percent for irritable bowel syndrome (IBS) and gastroesophageal reflux disease (GERD), to include extraschedular consideration, is denied. Entitlement to a separate 60 percent rating for impairment of sphincter control is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran has been assigned a 30 percent rating for IBS and GERD, which is the maximum rating allowed for that disability; and his IBS and GERD does not present such an exceptional or unusual disability picture as to render the schedular rating criteria inadequate or its application impractical. 2. Throughout the appeal period, the Veteran's IBS and GERD was productive of impairment of sphincter control with fairly frequent involuntary bowel movements. 3. The Veteran has a combined rating of at least 70 percent, with at least one disability rated at 40 percent or more; however, his service-connected disabilities have not prevented him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for IBS and GERD, to include extraschedular consideration, have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7319 (2020). 2. The criteria for a separate 60 percent rating for impairment of sphincter control have been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7332 (2020). 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from July 1975 to December 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2008 and May 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was last denied by the Board in September 2018. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2019, the Court granted a Joint Motion of the parties, vacated the Board's decision, and remanded the case to the Board for action consistent with the Joint Motion. Subsequently, the Board remanded the case for additional development, most recently in June 2021. The case has since been returned to the Board for further appellate action. Increased Rating The Veteran has contended that his IBS and GERD is worse than that contemplated by the currently assigned 30 percent rating. 38 C.F.R. § 4.114, Diagnostic Code 7319. In July 2008, the Veteran was afforded VA examinations for miscellaneous digestive conditions and esophagus and hiatal hernia. For his IBS, the Veteran reported a history of having several loose stools per day, associated with urgency. He stated that he had small amounts of stool/streaks in his underwear daily. He shared that he did not wear any protective undergarments. He stated that he had experienced about three episodes of stool incontinence while in bed over the last four years. Regarding his GERD, the Veteran reported a history of nausea, pyrosis, and regurgitation. He stated that he manifested symptoms of nausea several times a week after certain foods and in a reclining position, heartburn several times a week, and regurgitation weekly from partially digested food. He indicated that his GERD interfered with his sleep and feeding. The Veteran had a VA examination in March 2010. Regarding his IBS, he reported a history of diarrhea occurring approximately twice a week, along with occasional cramping. He stated that his IBS occasionally affected his activities of daily living (ADLs). For his GERD, he reported a history of reflux and occasional heartburn. His treatment consisted of taking Omeprazole twice a day with good response. In March 2016, a VA primary care physician stated that the Veteran had chronic fecal incontinence and the adult diapers that he prescribed were too small. The Veteran underwent VA examinations for intestinal and esophageal conditions in August 2016. For his IBS, the Veteran reported intermittent abdominal cramps associated with loose bowel movements daily. The examiner noted that the Veteran required use of a diaper intermittently. He took medication as needed. The Veteran reported occasional nausea with an exacerbation of one to two episodes in the past twelve months. The examiner indicated that the Veteran had frequent episodes of bowel disturbances with abdominal distress, and episodes of exacerbations and/or attacks of his IBS two times in the past twelve months. Regarding his GERD, the Veteran reported occasional nausea. His medication had been discontinued due to improvement in his symptoms. The VA examiner determined that the Veteran's condition was stable, without evidence of significant functional impairment. In December 2019, the Veteran had VA examinations for esophageal and intestinal conditions. Regarding his IBS, he described urge incontinence in that he was unable to get to the bathroom on time and often had fecal incontinence. He stated that his bowel movements were firm, "like a cork," followed by loose stools. He reported diarrhea approximately four to five times a week at different times of the day. He described a Bristol stool (category six or seven). Stool specimens collected the following day for analysis were characterized as loose. The examiner noted that the Veteran had not obtained adult diapers from VA since April 2017. The Veteran related that he was unable to eat vegetables, tomato sauce, or dairy because it aggravated his diarrhea. For his GERD, the Veteran complained of reflux once or twice a week lasting from one hour to overnight. Additionally, he had symptoms of pyrosis and regurgitation. He was reportedly informed that he had a history of stomach viral infection. His treatment plan did not include taking continuous medication. The examiner remarked that the Veteran's GERD had apparently improved as he was not undergoing treatment and had canceled two follow-up esophagogastroduodenoscopies (EGD) in the last two months. The Veteran was provided VA examinations for intestinal and esophageal conditions in April 2021. For his IBS, he reported that his symptoms had worsened with about twelve stools daily. He stated that he continued to experience abdominal cramping. He added that he had some hemorrhoids. He related that he started having intermittent constipation approximately one year ago. His treatment plan included taking continuous medication. The examiner indicated that the Veteran had alternating diarrhea and constipation. In this regard, the Veteran had frequent diarrhea with several loose stools a day that alternated with episodes of constipation. Additionally, the examiner determined that the Veteran had frequent episodes of bowel disturbance with abdominal distress. The examiner noted that the Veteran had frequent episodes of diarrhea that interfered with his ability to continuously perform work duties. Regarding his GERD, the Veteran reported reflux and intermittent heartburn. He stated that his symptoms had remained the same over time with intermittent flare up. His treatment plan included taking continuous medication. In September 2021, the Veteran was provided additional VA examinations for esophageal, intestinal, and rectum and anus conditions. Regarding his IBS, he reported alternating between constipation and diarrhea. He had some episodes of constipation where he felt like he could not go to the restroom. However, once the Veteran could pass the hard stool, his diarrhea would return. He stated that he had five to twelve bowel movements in a day. He related that he has had an episode of dehydration with more extensive diarrhea. The examiner indicated that the Veteran had frequent episodes of bowel disturbance with abdominal distress. His treatment plan included taking continuous medication. His productivity decreased at the times of frequent diarrheal stools in a day. For his GERD, he reported heartburn, burning sensation in his stomach, stomach cramps, gas, regurgitation, and nausea four or more times per year. His treatment plan included taking continuous medication. Regarding sphincter control, the Veteran reported an onset of impaired sphincter control starting around 2007. He stated that he has had several episodes while sleeping and driving. He shared that he takes preventative and protective measures by wearing a diaper. He described some fecal leakage when he did not have diarrhea and a brown line from stool in his underwear. He commented that medication helped his symptoms to a degree by slowing down his diarrhea, but it did not resolve his sphincter issue. The September 2021 VA examiner indicated that the Veteran had moderate to severe impairment of rectal sphincter control with fairly frequent involuntary bowel movement and leakage that necessitates wearing of pad. The examiner opined that the Veteran's impaired sphincter control was related to his IBS. The examiner stated that fecal urgency and diarrhea were risk factors for fecal incontinence/impaired sphincter control. The examiner explained that the looseness, wateriness, and urgency associated with the Veteran's IBS led to his fecal incontinence and impaired sphincter control. The Board acknowledges that the December 2019, April 2021, and December 2021 VA examiners opined that the Veteran did not have impairment of sphincter control and impairment of sphincter control as due to IBS. However, the examiners did not address the Veteran's lay statements of record. Additionally, the December 2021 VA examiner did not consider the March 2016 VA primary care physician's findings. Hence, the VA medical opinions are inadequate for rating purposes. A review of VA medical center records revealed that the Veteran has received additional treatment for his IBS and GERD. Further, the Veteran described "wip[ing] [his] behind several times a day due to [his] loose [bowels]," "sometimes [having] bow[e]l movements in [his] sleep," "times when he does not know he needs to use the restroom," and "uncontrollable bowels secondary to IBS." However, there is no indication from the lay or medical evidence that his symptoms were manifestly different from the findings reported above. The Board notes that a 30 percent rating is the maximum allowable schedular rating for IBS pursuant to the criteria of 38 C.F.R. § 4.114, Diagnostic Code 7319. However, resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran is entitled to a separate 60 percent rating for impairment of sphincter control as a complication of his IBS. Bailey v. Wilkie, 33 Vet. App. 188 (2021). In this regard, the Veteran's IBS and GERD was productive of impairment of sphincter control with fairly frequent involuntary bowel movements. There is no indication from the record that the Veteran's IBS and GERD was productive of complete loss of sphincter control. 38 C.F.R. § 4.114, Diagnostic Code 7332. The Board has considered assigning a higher rating under another diagnostic code. Although the Veteran reported that his GERD was productive of severe impairment, from which he had constant stomach (substernal) pain and occasional shoulder pain along with severe headaches, the objective medical evidence of record revealed that the Veteran's symptoms more nearly approximated two or more less severe symptoms of a 30 percent rating for GERD. 38 C.F.R. § 4.114, Diagnostic Code 7346. Further, there is no indication from the record that the Veteran's IBS and GERD with impairment of sphincter control caused any functional impairment other than those contemplated by the currently assigned ratings. Therefore, a higher rating under another diagnostic code is not warranted and the Veteran's symptoms are accurately reflected by the ratings assigned under 38 C.F.R. § 4.114, Diagnostic Codes 7319 and 7332. Moreover, the Board finds that the evidence does not show that the Veteran's disability picture for IBS and GERD with impairment of sphincter control is exceptional or unusual to require an extraschedular evaluation. The symptomatology reported by the Veteran and shown on examination is fully contemplated by the applicable rating criteria, and there are no characteristics or manifestations shown that is outside the purview of the applicable rating criteria or is so exceptional as to render the criteria inapplicable. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is therefore not required. 38 C.F.R. § 3.321(b)(1) (2020). The Board acknowledges the Veteran's contention that there is a collective impact of his service-connected IBS and GERD with impairment of sphincter control and migraine type/tension headaches. However, the Board notes that effective January 8, 2018, referral of a case for consideration of extraschedular rating based on the collective impact of two or more service-connected disabilities is no longer permitted. The new rule applies to all claims pending before VA on January 8, 2018, such as the instant case. See 82 Fed. Reg. 57, 830 (Dec. 8, 2017). Thus, extraschedular consideration based upon the combined effect of the Veteran's multiple service-connected disabilities is not warranted and is precluded by law. 38 C.F.R. § 3.321(b)(1). TDIU The Veteran has reported that his service-connected disabilities have prevented him from securing or following any substantial gainful occupation. With the grant of a separate 60 percent rating for impairment of sphincter control herein, the Veteran's combined rating is at least 70 percent with a disability, or separate disabilities combinable to at least 40 percent. Therefore, the Board finds that the Veteran meets the schedular criteria for assignment of a TDIU. 38 C.F.R. § 4.16. Additionally, the Veteran reported that he became too disabled to work in September 2007. He indicated that he completed one year of college and received training as a commercial truck driver. He stated that he was a welder and commercial truck driver. He related that he lost approximately seven months of time from his job as a welder due to his service-connected disabilities. Prior to his retirement in September 2007, the Veteran's reported job history included two years as a waiter/barkeeper, nine and a half years as a police officer, and approximately eighteen years as an iron worker/welder. Since the Veteran's retirement in September 2007, he indicated that he worked short, part-time jobs as a relief driver, substitute teacher, homecare aide, and courtesy officer. Furthermore, the Veteran reported that his headaches and IBS interfered with his ability to sleep/rest. Therefore, he stated that his service-connected disabilities impacted his ability to work. At a VA psychotherapy session in December 2007, the Veteran expressed that he was not able to progress in work and earn more money because he had too many problems with pain and could not do work that would enable him to get a higher pay grade as part of VA's Work for Pay Program. During a February 2008 VA psychotherapy session, the Veteran reported that his main problem was his back pain. He stated that became easily irritated and sometimes lost his temper. He expressed that he sometimes felt that he could not do his work and would have to go home. In March 2008, the Veteran underwent a VA orthopedic surgery consultation. He stated that he had been unable to work in the past because of his back pain. A November 2008 VA mental health treatment note documented that the Veteran did not work as a truck driver because he could no longer lift anything. In March 2010, a VA examiner opined that the Veteran's service-connected disabilities prevented the Veteran from being gainfully employed for heavy duty but did not prevent him from being gainfully employed for light duty. Additionally, the examiner opined that the Veteran's service-connected IBS and GERD and migraine type/tension headaches, individually, did not prevent the Veteran from being gainfully employed for light or heavy duty. The Veteran was provided VA examinations for intestinal conditions in April and September 2021. The April 2021 VA examiner noted that the Veteran had frequent episodes of diarrhea that interfered with his ability to continuously perform work duties. Further, the September 2021 VA examiner stated that the Veteran had decreased productivity at the times of frequent diarrheal stools in a day. Social Security Administration (SSA) records revealed that the Veteran reportedly stopped working as a welder in September 2007 when his medical problems precluded his ability to do his job, which involved extensive periods of standing, lifting, and walking. Since that time, he had not attempted to return to work because his health had not improved, and he doubted his ability to manage even a part-time, sedentary, low stress occupation. In February 2008, a psychiatrist determined that the Veteran would not be able to consistently complete an average workday or week without interruptions from his depressive disorder or be able to adapt to change and stress in the workplace or concentrate for long periods of time. SSA determined that the Veteran was unable to engage in any substantial gainful activity as of September 28, 2007, due to his nonservice-connected mood and psychoactive substance dependence disorders. Based on the lay evidence, SSA records, and VA examination reports, the Board finds that the Veteran's service-connected disabilities alone do not render him unemployable. The Board takes notice that the Veteran's retirement was, at least in part, due to the functional limits of his nonservice-connected back and psychiatric disabilities. On several occasions, the Veteran stated that he stopped working because of pain, back pain, or his inability to perform work that required standing, lifting, and/or walking. While the March 2010, April 2021, and September 2021 VA examiners notated that the Veteran's service-connected disabilities impacted his ability to work, the examiners did not conclude that the Veteran's functional impairment prevented him from securing or following a job comparable with his previous work, education, and training. (Continued on the next page) Therefore, the Board is constrained to find that the Veteran's service-connected disabilities precluded all types of employment consistent with his education and occupational background without any corroborating lay or medical evidence of such. Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to a TDIU is not warranted. 38 U.S.C. § 5107(b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ware, 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.