Citation Nr: A24075813 Decision Date: 11/18/24 Archive Date: 11/18/24 DOCKET NO. 221018-286974 DATE: November 18, 2024 ORDER An initial rating in excess of 30 percent for irritable bowel syndrome (IBS) to include gastroesophageal reflux disease (GERD) is denied. FINDING OF FACT The Veteran's IBS and GERD more closely approximate persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 30 percent for service-connected IBS to include GERD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, Diagnostic Code (DC) 7319, 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from July 1998 to November 2003, and in the Navy from May 2017 to May 2018. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2022 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the October 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the July 2022 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review in the September 2022 rating decision. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 1. Entitlement to an initial rating in excess of 30 percent for IBS to include GERD Legal Principles Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. When an unlisted disorder is being rated by analogy under 38 C.F.R. § 4.20, the listed disease or injury to which a veteran's unlisted condition is being rated by analogy must be only "closely related," and not identical, to the unlisted condition. Once VA has concluded that a listed disease or injury is closely analogous to a Veteran's unlisted condition, VA should not strictly withhold the rating based on the qualifying criteria associated with that listed disease or injury's diagnostic code. Webb v. McDonough, 71 F.4th 1377 (Fed. Cir. 2023). The Board notes that VA recently amended the Rating Schedule for evaluating digestive system disabilities effective May 19, 2024. See 89 Fed. Reg. 19375. The revised rating criteria apply to all claims received by VA or that are pending before the AOJ on or after May 19, 2024. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria are more favorable to the Veteran will be applied. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Since the applicable evidentiary window in this appeal predates the amendments, the Board will only consider the rating criteria in effect prior to May 19, 2024. Under 38 C.F.R. § 4.114, Schedule of ratings-digestive system, VA shall not combine ratings under diagnostic codes 7301 through 7329 inclusive, 7331, 7342, 7345 through 7348 inclusive, with each other. Instead, when more than one rating is warranted under those diagnostic codes, VA shall assign a single evaluation under the diagnostic code that reflects the predominant disability picture, and elevate it to the next higher evaluation if warranted by the severity of the overall disability. Under 38 C.F.R. § 4.114, Diagnostic Code 7319, a noncompensable rating is warranted for mild symptoms of IBS; disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent disability rating is warranted for moderate symptoms of IBS; frequent episodes of bowel disturbance with abdominal distress. A maximum 30 percent disability rating is warranted for severe symptoms of IBS; diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. Under 38 C.F.R. § 4.114, Diagnostic Code 7346, a minimum 10 percent disability rating is warranted where there are two or more symptoms for the 30 percent evaluation of less severity. A 30 percent disability rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A maximum 60 percent disability rating is warranted for symptoms of pain, vomiting, material weight loss and hematemesis (vomiting blood) or melena (tarry stools) with moderate anemia; or other symptom combinations productive of severe impairment of health. When assigning a disability rating, the Board may not consider the ameliorative effects of medication when those effects are not explicitly contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 61 (2012); see also Massey v. Brown, 7 Vet. App. 204, 208 (1994) ("The Board's consideration of factors which are wholly outside the rating criteria provided by the regulations is error as a matter of law."). If the DC under which the veteran's disability is rated "does not specifically contemplate the effects of medication, the Board is required pursuant to Jones to discount the ameliorative effects of medication" when assigning a rating. McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc). The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service connected, others, not. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses is to be avoided. 38 C.F.R. § 4.14. Relevant Facts and Analysis Service connection was originally established for IBS with GERD in a May 2021 rating decision; a 30 percent rating was assigned under 38 C.F.R. § 4.114, DC 7319-7346, effective March 7, 2021. The AOJ found the maximum schedular rating (30 percent) was warranted under DC 7319 for IBS due to abdominal distress, diarrhea, and frequent episodes of bowel disturbance; and a 10 percent rating was warranted under DC 7346 for GERD (rated as hiatal hernia) due to persistently recurrent epigastric distress, pyrosis (heartburn and/or reflux), regurgitation, and substernal pain. It was noted that the service-connected disability is not specifically listed in the rating schedule and it was therefore rated analogous to a disability in which not only the functions affected, but the anatomical localization and symptoms, are closely related. Overall, IBS was deemed the predominant disability. The Veteran contends that she is entitled to a higher evaluation for her service-connected IBS and GERD because her symptoms combine to be "productive of severe impairment of health" as contemplated by the 60 percent rating criteria under DC 7346, which was utilized by VA (prior to the rating criteria change on May 19, 2024) to rate GERD by analogy to the criteria for hiatal hernia. See October 2022 Appellate Brief. In March 2021, the Veteran submitted a statement in support of her claim. See March 2021 VA Form 21-4138. She described symptoms of GERD including back pain, nausea, acid reflux, and heartburn, which are made worse during times of stress; additionally, she described chest, arm, and shoulder pain during a flare-up; and disturbances of sleep, with follow-on consequences that she attributed to the sleep disturbances, including difficulty concentrating, daytime fatigue, depressed mood, frequent yawning, low sex drive, mood changes, and irritability. She described treatment including antacid pills, omeprazole, famotidine, avoiding certain foods, and avoiding lying down after eating. She described symptoms of IBS including episodes of diarrhea, using the bathroom up to five times a day, abdominal pain, excess gas, cramping, and bloating. The Board finds that the Veteran's statement is highly credible and is generally consistent with the balance of the claims file, and affords it great probative weight with respect to the subjective experience of symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In May 2021, the Veteran was afforded a VA examination. See May 2021 C&P (Compensation and Pension) Examination (esophageal), May 2021 C&P Examination (intestinal). The examiner indicated that she examined the Veteran in person, and reviewed the claims folder. Symptoms noted included persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal pain, sleep disturbance (four or more per year; average duration, less than one day), chronic diarrhea (three to four loose bowel movements daily), loss of appetite, abdominal pain and cramping, bloating, gas, and nausea. Treatment noted included famotidine, probiotics, and dicyclomine. Symptoms denied included dysphagia, arm pain, shoulder pain, material weight loss, malnutrition, vomiting, hematemesis, melena, anemia, esophageal stricture, alternating diarrhea and constipation, serious complications or other general health effects attributable to the intestinal condition (including general debility, serious complication such as liver abscess); and symptom combination productive of severe impairment of health. Functional impact was recorded as follows: Veteran is limited in ability to be without access to bathroom, needs to take sudden, unscheduled bathroom breaks frequently, bowel changes and incontinence, abdominal pain aggravated by high stress, food, physical activity, impaired attention and concentration and ability to work with public as related to IBS. The question of whether there was functional impact due to GERD was answered "no." The examination is appropriately detailed, the conclusions are supported by adequate rationale, and the characterization of the Veteran's condition is consistent with the balance of the claims file. The Board finds that it is highly credible and affords it great probative weight. In April 2022, the Veteran was afforded a VA examination. See April 2022 C&P Examination (esophageal), April 2022 C&P Examination (intestinal). The examiner indicated that he reviewed the claims folder and interviewed the Veteran via telephone, but did not conduct an in-person or telehealth examination. Symptoms noted included burning sensation in her throat, esophagus, chest, and stomach; dry cough, mostly at night; nighttime awakening due to reflux about three times per week; sleep disturbance four or more times per year with average duration less than one day; pyrosis, reflux, regurgitation, substernal pain; abdominal cramps with distension; and continuous diarrhea alternating with constipation. Treatment noted included famotidine, omeprazole, and dicyclomine. Symptoms denied included dysphagia, hematemesis, melena, anemia, nausea, vomiting, weight loss, malnutrition, tumors, neoplasms, serious complications or other general health effects attributable to the intestinal condition; and symptom combination productive of severe impairment of health. Functional impact was recorded as follows: she often feels she has to throw up which affects her concentration; she always has to be near a bathroom, and so work can sometimes be difficult. The examination is appropriately detailed, the conclusions are supported by adequate rationale, and the characterization of the Veteran's condition is consistent with the balance of the claims file. The Board finds that it is highly credible and affords it great probative weight. In March 2022, the Veteran submitted a private opinion regarding the severity of her IBS and GERD. See October 2021 Medical Opinion (received by VA March 2022). The provider did not indicate that she had reviewed the claims file, or that she interacted with the Veteran either via in-person examination or remotely. She noted symptoms as indicated on the May 2021 rating decision, including abdominal distress, diarrhea, frequent episodes of bowel disturbance, persistently recurrent epigastric distress, pyrosis, regurgitation, and substernal pain; as well as symptoms listed in the Veteran's March 2021 VA Form 21-4138 which the provider quoted verbatim (see above). The provider, a nurse practitioner, proffers an interpretation of the medical evidence cited, which urges the Board to adopt definitions from the Social Security Administration and the World Health Organization for "severe" and "impairment of health" in order to support an evaluation of 60 percent for the Veteran's rating for IBS and GERD. Notably, the provider suggests that "not severe" represents a disability picture where there is only a slight abnormality that has no more than a minimal effect on the ability to do basic work activities. While these sources may provide some insight as to the rating criteria, the Board declines at this time to adopt such definitions. In addition, the provider urges the Board to consider the "health related emotional, psychological, and spiritual impacts on behavioral functioning" in rating these disabilities. The Board notes that the October 2022 Appellate Brief urges the same definitions and conclusions based on the private provider opinion. VA is permitted to rate based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. While the Board acknowledges and is sympathetic to the holistic effects these disabilities have on many aspects of the Veteran's day-to-day experience, it must adhere to the statutes and regulations and adjudicate appeals in a manner that treats similarly situated appellants equally. The provider did not indicate that she reviewed the claims file, so it is unclear whether she viewed any other document than those directly cited. There is no indication that she examined the Veteran, either in person or remotely. Her conclusions directly contradict the findings of the May 2021 and April 2022 VA examinations, in that she concludes that there was severe impairment of health, and the VA examinations conclude that there was not severe impairment of health. The difference in conclusions appears to be due to differing interpretations of similar evidence, rather than different evidence. Her recitation of symptoms is consistent with the balance of the claims file. For these reasons, the Board assigns this opinion low probative weight. The Veteran has also sought care for her IBS and GERD at a VA Medical Center (VAMC). See, e.g., CAPRI (Compensation and Pension Record Interchange) received April 2022, p. 429; CAPRI received March 2021, pp. 2, 7, 81, 84. A history of anemia was noted but current anemia was not shown. See CAPRI received April 2022, p. 429. The Veteran reported symptoms including abdominal cramps, bloating, bowel movement after each meal, three to four soft bowel movements a day, fecal urgency, intermittent heartburn, and reflux. Interventions recorded included limiting certain foods and medications; and taking omeprazole, famotidine, dicyclomine, probiotic, and a fiber supplement. Diagnostic procedures included colonoscopy, endoscopy, and duodenal biopsy. Results of the diagnostic procedures were as follows in May 2021: the tissue samples taken from the intestines did not show any significant abnormalities; the perianal and digital rectal examinations were normal; the entire examined colon appeared normal; the retroflexed view of the distal rectum and anal verge was normal and showed no anal or rectal abnormalities. See CAPRI received September 2021, pp. 61, 65. The Veteran was also seen by a dietician for advice on reducing symptoms of IBS and GERD. See CAPRI received March 2022, p. 12. There was no record of hospitalization, emergent, or urgent care for these conditions. Because these records were produced as the Veteran was seeking timely, adequate, and appropriate medical care, the Board finds that they are highly credible and affords them great probative weight. Per 38 C.F.R. § 4.114, digestive ratings shall not be combined, but shall be assigned a single evaluation based on the predominant disability (the disability that supports the higher rating). However, IBS and GERD may each be able to support a 30 percent rating; moreover, the question before the Board is whether the Veteran is entitled to a higher rating. Therefore, consideration of the rating criteria that have a possibility of providing an increased rating (GERD, rated by analogy under DC 7346 for hiatal hernia) will follow in accordance with VA's duty to maximize benefit to the Veteran. Bradley v. Peake, 22 Vet. App. 280, 294 (2008); Morgan v. Wilkie, 31 Vet. App. 162, 167 (2019). Neither the Rating Schedule nor the regulations provide a definition for descriptive words such as "considerable" and "severe." In the absence of guidance, the Board will consider the dictionary definitions for these subjective adjectives. "Considerable" is defined as "large in extent or degree." "Severe" is defined as "very painful or harmful." Merriam-Webster's Collegiate Dictionary 267 (11th ed. 2012). With this in mind, the Board notes that the rating criteria speak directly to many of the symptoms the Veteran experiences; namely, persistently recurrent epigastric distress, pyrosis, regurgitation, and substernal or arm or shoulder pain. These symptoms are contemplated by the 30 percent rating criteria under DC 7346. Similarly, the Veteran's IBS manifests in diarrhea, alternating diarrhea and constipation, with more or less constant abdominal distress, which also corresponds to a 30 percent rating (the maximum rating under DC 7319 for IBS). The Board notes that the Veteran experiences pain, which is contemplated by the 60 percent criteria under DC 7346; however, the other symptoms contemplated by the 60 percent criteria are absent; and, notably, the VA examiners specifically declined to indicate that there is a symptom combination productive of severe impairment of health. The Board is not permitted to apply its own judgment to medical determinations; it must rely on the opinions in the claims file. Colvin v. Derwinski, 1 Vet. App. 171 (1990). Furthermore, there is nothing in the probative medical evidence that raises a question as to the appropriateness of this characterization. The results of the Veteran's VAMC colonoscopy were normal. There is no evidence, for example, of hospitalization, emergency room visit, or urgent care. There is no indication that the IBS and GERD are causing "very harmful" effects on the Veteran's health, as may be the case for a disability picture that included symptoms similar or equivalent to vomiting, material weight loss, hematemesis, melena, and/or anemia. The Board notes that, although ratings by analogy do not require strict correspondence to the listed symptoms, there is enough correspondence in this particular case that a more liberal reading of the criteria need not be undertaken. Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006) (stating that disabilities rated by analogy will not show all objective criteria of the analogous rating). With respect to the ameliorative effects of medication, a close reading of the claims file has revealed no additional symptoms or severity for the above-referenced symptoms. The Veteran's disability picture appears to reflect the 30 percent rating criteria regardless of the use of medication, because the symptoms and severity for a higher disability rating are not supported by the record; for example, an August 2020 intake note for gastroenterology recorded similar symptoms to those listed above, and noted that the Veteran was taking omeprazole but that it was not helping. See CAPRI received April 2022, p. 429. Finally, with respect specifically to the symptoms of daytime fatigue, depressed mood, difficulty concentrating, mood changes, irritability, and disturbances of sleep, the Board has not attempted to account for these under the gastrointestinal rating, because they are already being compensated under the Veteran's other disability ratings. See, e.g., July 2020 C&P Examination, p. 9. Based on the above, the Board finds that, throughout the period on appeal, the Veteran's IBS and GERD manifested in symptoms more closely approximating persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health; and there was not a combination of symptoms productive of severe impairment of health. Because the evidence clearly weighs against a higher rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 ? C.F.R. § 3.102. A higher 60 percent rating under DC 7346 is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, DC 7319, 7346. M. C. WILSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Williams, S. 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.