Citation Nr: 22018292 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-48 898 DATE: March 28, 2022 ORDER Prior to April 27, 2018, an initial evaluation higher than 30 percent for gastroesophageal reflux disease (GERD) with irritable bowel syndrome (IBS) is denied. From April 27, 2018, forward, a 60-percent evaluation for GERD with IBS is granted. An initial compensable evaluation for onychomycosis of the right toe, claimed as a fungal infection, prior to November 5, 2019, and in excess of 10 percent thereafter, is denied. FINDINGS OF FACT 1. Prior to April 27, 2018, the Veteran's GERD with IBS has been manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health but not by material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 2. From April 27, 2018, forward, the Veteran's GERD with IBS has been manifested by symptom combinations productive of severe impairment of health. 3. Prior to November 5, 2019, the Veteran's service-connected skin condition affected less than five percent of the entire body, less than five percent of the exposed body, and did not require treatment with any topical therapy. 4. From November 5, 2019, onward, the Veteran's service-connected skin condition consisted of characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected. CONCLUSIONS OF LAW 1. Prior to April 27, 2018, the criteria for a rating in excess of 30 percent for GERD with IBS have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, Diagnostic Codes (DCs) 7319-7346. 2. From April 27, 2018, forward, the criteria for a rating of 60 percent, but no higher, for GERD with IBS have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, DCs 7319-7346. 3. Prior to November 5, 2019, the criteria for a compensable disability rating for the Veteran's service-connected skin condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, DC 7806. 4. From November 5, 2019, onward, the criteria for a disability rating in excess of 10 percent for the Veteran's service-connected skin condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, DC 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2006 to October 2014. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision. In March 2019 and June 2020, the Board remanded these matters for further development. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges 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). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied if the evidence persuasively weighs against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. Prior to April 27, 2018, an initial evaluation higher than 30 percent for GERD with IBS is denied. 2. From April 27, 2018, forward, a 60-percent evaluation for GERD with IBS is granted. In November 2021, the Veteran was granted an initial increased rating of 30-percent under DCs 7319-7346 for his GERD with IBS for the entire appeal period, which begins on October 4, 2014, the day after he separated from active-duty service. As this rating is not a full grant of benefits, the issue remains on appeal. Ratings under DCs 7301 to 7329, 7331, 7342, and 7345 to 7348 will not be combined with each other. A single evaluation will be assigned under the DC that reflects the predominant disability picture with an elevation to the next higher evaluation when the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.118. All symptoms attributed to the coexisting conditions being rated will be considered in assigning the rating, but the criteria under the applicable, predominant disability DC will determine the appropriate rating to be assigned. Concerning weight loss, for purposes of evaluating conditions in § 4.114, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. The term "inability to gain weight" means there has been substantial weight loss with an inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two-year-period preceding the onset of the disease. 38 C.F.R. § 4.112. As to coexisting abdominal conditions, there are diseases of the digestive system, particularly within the abdomen, that 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. Thus, certain coexisting diseases in this area, as indicated in the instruction under the title "Diseases of the Digestive System," 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. Under DC 7346, a 30-percent rating is warranted where hiatal hernia is productive of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health; and, a 60-percent rating is assigned for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, DC 7346. Turning to the evidence of record, in March 2015, the Veteran received a VA examination. The Veteran reported tightness and pain of his mid-chest wall. It was noted the Veteran uses Nexium as medication for his GERD. The Veteran's symptom was found to consist of reflux. No esophageal stricture, spasm, or diverticula was noted. Diagnostic testing showed hemoglobin at 15 grams per deciliter and hematocrit at 46 percent. The Veteran was seen for his GERD with IBS condition in April 2018. The Veteran reported stomach cramps. It was noted that on his worst days, he had frequent diarrhea every 10 minutes until he was empty, and then he experienced a lot of gas. He reported having normal stools, but his IBS flare-ups occurred up to four times weekly. Anxiety over traveling, big decisions, new environments, socializing, public speaking, flying, or anything he had no control over were potential trigger symptoms; however, food was reported not to be a trigger. He reported no history of bloody diarrhea. He indicated not having IBS prior to his active service. In May 2018, a VA physician noted the Veteran's blood count was within normal limits. The Veteran received a VA examination in November 2019. He reported symptoms of mild acid reflux, an uneasy stomach, acidic taste of the esophageus, and mild chest tightness. He stated using Maalox for treatment. His symptoms were found to include pyrosis, reflux, and substernal pain. No esophageal stricture, spasm, or diverticula was noted. No laboratory tests were performed. The Veteran's most recent VA examination was completed in November 2021. He reported having gone to the emergency room with complaints of chest tightness and chest pain, which he was told were due to his GERD. Since the onset of his condition in 2012, he also reported constant diarrhea, abdominal cramps, and nausea. He further reported his GERD and IBS had worsened over the last two years. Current symptoms were noted to include heartburn, reflux, monthly regurgitation, IBS, and watery diarrhea up to six times a week. The Veteran indicated taking Maalox and probiotics for his condition. Symptoms were found to include persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal pain, and nausea four or more times a year lasting for less than one day. No esophageal stricture, spasm, or diverticula was noted. No laboratory tests were performed. It was indicated the Veteran was employed as a teacher, and over the last 12 months, his condition resulted in up to two weeks in lost work time. Due to frequent bowel movements, his IBS was noted to affect his productivity. Based on a review of the relevant evidence of record, the Board finds the initial 30-percent disability rating for the Veteran's GERD with IBS most accurately compensates the Veteran's for his condition prior to April 27, 2018. The medical evidence reflects the Veteran's GERD is primarily manifested by symptoms of epigastric distress with pyrosis, and regurgitation, accompanied by substernal pain, productive of considerable impairment of health. However, the evidence is against a finding that the Veteran's GERD is manifested by symptoms of material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health to warrant a 60-percent rating prior to April 27, 2018. While the Veteran's GERD symptoms include abdominal pain and nausea, which are noted to produce considerable impairment in the Veteran's health, the medical evidence of record is silent for material weight loss, hematemesis, melena, or moderate anemia suggestive of severe impairment of health prior to April 27, 2018. Therefore, the Board finds an initial rating in excess of 30 percent is unwarranted for the Veteran's GERD with IBS prior to April 27, 2018. However, beginning on April 27, 2018, the date the medical evidence reflects the Veteran's condition is productive of severe impairment of health, the Board concludes the Veteran's GERD with IBS produced symptoms that have severely impaired the Veteran's health. Without considering the ameliorative effects of prescribed medications, Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), the Board finds the Veteran experienced frequent episodes of diarrhea, heartburn, and regurgitation that led to changes in how he structured his daily life, including effects on his occupation. Consistent with this characterization, the April 2018 consult and November 2021 VA examiner indicated the Veteran had symptoms that affected activities of daily living and caused up to two weeks in lost work time over the last 12 months with his IBS in particular affecting his productivity due to frequent bowel movements, which the Board finds is productive of severe impairment of health. As such, the Board assigns a 60-percent rating from April 27, 2018, pursuant to 38 C.F.R. § 4.114, DC 7346. 3. An initial compensable evaluation for onychomycosis of the right toe, claimed as a fungal infection, prior to November 5, 2019, and in excess of 10 percent thereafter, is denied. The Veteran was granted service connection for onychomycosis in March 2015 and assigned an initial noncompensable rating under DCs 7813-7806. Thereafter, an April 2020 rating decision increased the Veteran's rating from noncompensable to 10 percent, effective November 5, 2019, based on a VA examination finding characteristic lesions affecting at least 5 percent, but less than 20 percent, of the exposed areas. As this rating is not a full grant of benefits, the issue remains on appeal. Under DC 7806, a noncompensable evaluation contemplates less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and no more than topical therapy required during the past 12-month period. A rating of 10 percent is assigned with at least 5 percent, but less than 20 percent, of the entire body affected; or, at least 5 percent, but less than 20 percent, of the exposed areas affected; or, intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than 6 weeks during the past 12-month period. A rating of 30 percent is assigned with 20 to 40 percent of the entire body or exposed areas affected; or, systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constant, during the past 12-month period. A rating of 60 percent is assigned with more than 40 percent of the entire body or exposed areas affected; or, constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. 38 C.F.R. § 4.118 was recently amended, effective August 13, 2018. 83 Fed. Reg. 32,592 (July 13, 2018), revised, 83 Fed. Reg. 38,663 (Aug. 7, 2018). These amendments revised DCs 7806 and 7813, to state that disabilities evaluated under these DCs should be evaluated under the General Rating Formula for the Skin. Therefore, the Board will consider the Veteran's claim under both the old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. If the new criteria are more favorable, they will only be applied from August 13, 2018, when the regulations became effective. The General Rating Formula for the Skin provides that a noncompensable rating is warranted where there is no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. A 10-percent rating will be warranted where there is at least one of the following: Characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. A 30-percent rating will be warranted where there is At least one of the following: Characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60-percent rating will be warranted where there is at least one of the following: Characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period. The General Rating Formula further provides that depending on the predominant disability, the disability could be rated instead as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7804, or 7805). The Veteran was afforded a VA examination for his skin condition in March 2015. Scarring or disfigurement of the head, face, or neck was not found. No benign or malignant skin neoplasms were found. No systemic manifestations such as fever, weight loss, or hypoproteinemia were found. The Veteran had not used oral or topical medications in the twelve months prior for his skin condition. The Veteran had not had any treatments or procedures. Debilitating and non-debilitating episodes were not found. No visible skin condition was found. No specific skin conditions such as acne, vitiligo, alopecia, or hyperhidrosis were found. The examiner noted the total body area was two percent and affected the Veteran's right great toe as a fungal infection. In November 2019, the Veteran was afforded another VA examination for his skin condition. The examiner noted the Veteran's toenail condition had spread from the first toe to the second and third toes in addition to itchy skin. Scarring or disfigurement of the head, face, or neck was not found. No benign or malignant skin neoplasms were found. No systemic manifestations were found. The Veteran had not used oral or topical medications in the twelve months prior for his skin condition. The Veteran had not had any treatments or procedures. Onychomycosis of the right great toe, second and third toes was found to cover an area of less than five percent, with no exposed area. No specific skin conditions such as acne, vitiligo, alopecia, or hyperhidrosis were found. The most recent VA examination of record occurred in November 2021. Scarring or disfigurement of the head, face, or neck was not found. No benign or malignant skin neoplasms were found. No systemic manifestations were found. The Veteran had not used oral or topical medications in the twelve months prior for his skin condition. The Veteran had not had any treatments or procedures. The Veteran's skin condition was found to cover an area of less than five percent, with no exposed area. No specific skin conditions such as acne, vitiligo, alopecia, or hyperhidrosis were found. Prior to November 5, 2019, the medical or lay evidence does not demonstrate a rating of 10 percent. To review, a 10 percent disability rating required the Veteran's service-connected skin condition cover at least 5 percent, but less than 20 percent, of the entire body affected; or, at least 5 percent, but less than 20 percent, of the exposed areas affected; or, intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than 6 weeks during the past 12-month period. From November 5, 2019, forward, the Veteran is in receipt of a 10-percent rating because the medical evidence from that time showed the Veteran's toenail condition had spread from the first toe to the second and third toes in addition to itchy skin or characteristic lesions affecting at least 5 percent, but less than 20 percent, of the exposed areas. The next highest rating, 30 percent, requires at least one of the following: Characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. The medical or lay evidence has not demonstrated the criteria for a 30-percent rating. (Continued on next page) Thus, for the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether higher evaluations are warranted. Rather, the evidence persuasively weighs against such findings. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch, supra. J. LEE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Buck Denton 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.