tdiu Gerd And Ibs

[pacmanx1]

Citation Nr: 0919318

Decision Date: 05/22/09 Archive Date: 05/26/09

DOCKET NO. 07-23 025 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in Togus, Maine

THE ISSUES

Entitlement to an increased rating in excess of 30 percent for

irritable bowel syndrome (IBS) and gastroesophageal reflux

disorder (GERD).

REPRESENTATION

Appellant represented by: Texas Veterans Commission

ATTORNEY FOR THE BOARD

A.M. Ivory, Associate Counsel

INTRODUCTION

The Veteran had active military service from November 1979 to

July 1986.

This matter comes before the Board of Veterans' Appeals (Board)

on appeal from January 2005 and January 2006 rating decisions

by the Department of Veterans' Affairs (VA) Regional Office

(RO) in Togus, Maine and the RO in Augusta, Maine.

During the pendency of this appeal the RO issued the January

2009 Decision Review Officer (DRO) decision which granted the

Veteran an increased rating of 50 percent for her service-

connected migraine headaches, effective May 19, 2004, the date

of the Veteran's claim for increase. The Board notes that the

50 percent disability rating is the maximum available rating

under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Therefore,

since the Veteran was granted the full benefits sought on

appeal, the issue of an increased rating for migraine headaches

is no longer before the Board.

The January 2005 and January 2006 RO rating decisions continued

the Veteran's 10 percent disability rating for her service-

connected IBS. The January 2006 RO rating decision granted the

Veteran service connection and a noncompensable rating for

peptic ulcer. In compliance with 38 C.F.R. § 4.114 a May 2007

DRO decision combined the Veteran's service-connected IBS and

service-connected peptic ulcer, GERD, and granted her a

combined rating of 30 percent, effective September 17, 2004.

Inasmuch as a rating higher than 30 percent for the service-

connected IBS and GERD is available, and inasmuch as a claimant

is presumed to be seeking maximum available benefit for a given

disability, the claim for higher ratings, as reflected on the

title page, remains viable on appeal. See AB v. Brown, 6 Vet.

App. 35, 38 (1993).

The Board notes at the Veteran's February 2008 VA examination

the examiner stated that her GERD and IBS interfered with her

employment. Therefore, the Board refers the issue of total

disability rating based on individual unemployability due to a

service-connected disability (TDIU) to the RO for further

development.

FINDING OF FACT

The Veteran's service-connected IBS and GERD are manifested by

other symptom combinations productive of severe impairment of

health.

CONCLUSION OF LAW

The criteria for the assignment of an increased rating of 60

percent for the service-connected IBS and GERD are met. 38

U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2008);

38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.10, 4.20, 4.114

including Diagnostic Codes 7319, 7346 (2008).

REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

Initially, the Board notes that, in November 2000, the Veterans

Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114

Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§

5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement

the provisions of the law, VA promulgated regulations at 38

C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008).

VCAA and its implementing regulations include, upon the

submission of a substantially complete application for

benefits, an enhanced duty on the part of VA to notify a

claimant of the information and evidence needed to substantiate

a claim, as well as the duty to notify the claimant what

evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38

C.F.R. § 3.159(b).

In addition, they define the obligation of VA with respect to

its duty to assist a claimant in obtaining evidence. 38

U.S.C.A. § 5103A; 38 C.F.R. § 3.159©.

Considering the duties imposed by VCAA and its implementing

regulations, and given that the action taken hereinbelow is

fully favorable by granting the Veteran the maximum schedular

rating available to her, the Board finds that all notification

and development action needed to fairly adjudicate the claim on

appeal has been accomplished.

II. Analysis

Disability evaluations are determined by the application of

VA's Schedule for Rating Disabilities, which assigns ratings

based on average impairment of earning capacity resulting from

a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R.

Part 4.

Where there is a question as to which of two evaluations shall

be applied, the higher evaluation will be assigned if the

disability picture more nearly approximates the criteria

required for that rating; otherwise, the lower rating will be

assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the

degree of disability is resolved in favor of the Veteran. See

38 C.F.R. §§ 3.102, 4.3 (2008).

The Veteran's entire history is to be considered when making

disability evaluations. See generally 38 C.F.R. § 4.1;

Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

Where entitlement to compensation already has been established

and an increase in the disability rating is at issue, it is the

present level of disability that is of primary concern. See

Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

Nevertheless, the Board acknowledges that 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.

The January 2005 and January 2006 RO rating decisions continued

the Veteran's 10 percent disability rating for her service-

connected IBS. The January 2006 RO rating decision granted the

Veteran service connection and a noncompensable rating for

peptic ulcer. In May 2007 a DRO decision combined the

Veteran's service-connected IBS and service-connected peptic

ulcer, GERD, and granted her a combined rating of 30 percent,

effective September 17, 2004.

The Veteran asserts that her service-connected GERD and IBS are

worse then the increased 30 percent disability rating.

The Board notes that the Veteran's IBS and GERD cannot be rated

separately because 38 C.F.R. § 4.114 states that ratings under

Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345

to 7348, inclusive, will not be combined with each other. A

single rating will be assigned under the diagnostic code that

reflects the predominant disability picture, with elevation to

the next higher rating where the severity of the overall

disability warrants such elevation. Therefore, in this

situation the highest scheduler rating the Veteran can get is

rated under the criteria for GERD and therefore, the Veteran

will not be granted a separate rating.

Additionally, the Board notes that to assign two separate

ratings under 38 C.F.R. § 4.114 would constitute pyramiding and

"the evaluation of the same manifestation under different

diagnoses are to be avoided." 38 C.F.R. § 4.14. Also,

Esteban v. Brown, citing Brady v. Brown: "38 U.S.C.A. sec.

1155 implicitly contains the concept that 'the rating schedule

may not be employed as a vehicle for compensating a claimant

twice or more for the same symptomology; such a result would

overcompensate the claimant for the actual impairment of his

earning capacity' and would constitute pyramiding." Esteban

v. Brown, 6 Vet. App. 259, 261 (1994), citing Brady v. Brown, 4

Vet. App. 203 (1993).

The Veteran is currently rated under 38 C.F.R. § 4.114,

Schedule of Ratings for the Digestive System, Diagnostic Code

7436. A rating of 10 percent is awarded with two or more of

the symptoms for the 30 percent evaluation of less severity. A

rating of 30 percent may be assigned 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 rating of 60 percent

may be awarded for symptoms of pain, vomiting, material weight

loss or hematemesis or melena with moderate anemia, or other

symptom combinations productive of severe impairment of health.

The Board notes that also applicable under 38 C.F.R. § 4.114 is

Diagnostic Code 7319, which provides ratings for irritable

colon syndrome (spastic colitis, mucous colitis, etc.). A

noncompensable rating is warranted when there is mild irritable

colon syndrome, with disturbances of bowel function with

occasional episodes of abdominal distress. A 10 percent

disability rating is warranted when there is moderate irritable

colon syndrome, with frequent episodes of bowel disturbance

with abdominal distress. A 30 percent disability rating is

severe irritable colon syndrome, with diarrhea, or alternating

diarrhea and constipation, with more or less constant abdominal

distress.

The Board notes that the terms "mild," "moderate,"

"severe," "considerable," and "of lesser severity" are not

defined in the rating schedule; rather than applying a

mechanical formula, VA must evaluate all the evidence to the

end that its decisions are "equitable and just." 38 C.F.R. §

4.6.

At the Veteran's July 2005 VA examination it was noted that she

had diarrhea for 3 days every 3 to 4 months and the last time

there was blood in her stool. It was also noted that she lost

work due to her IBS.

In July 2007 the Veteran had a VA examination where she

reported vomiting once every few weeks; however, she didn't

have weight loss or hematesis. There were occasional episodes

of abdominal distress. She had frequent episodes of bowel

disturbance and alternating diarrhea and constipation. She had

blood intermittent with her periods of diarrhea, a few times a

month for a couple of days. She also had lower abdominal pain,

reflux, and vomited once every 3 months. She had no dysphagia,

pain, hematemesis, or anemia.

At the Veteran's February 2008 VA examination it was noted that

her GERD and IBS were progressively worse. It was noted that

the Veteran did not have any vomiting, esophageal, hematemesis,

melena, or anemia. However, she did have nausea several times

a week after meals and frequent dysphagia; it was less then

daily but occurred more than once weekly. She also had

heartburn/pyrosis and regurgitation several times daily and

esophageal dilation once in the past 12 months. She also had

weekly constipation and persistent diarrhea that occurred 4 to

6 times daily. In addition, she had sharp intestinal pain in

the epigastric area that occurred several times a day for 1 to

2 hours and was severe.

The VA examiner noted that the Veteran lost 11 weeks of work in

the past year due to her IBS and GERD. She also had

significant loss of stamina, weakness, and fatigue. Her

activities of daily living were affected mildly in the areas of

bathing, dressing, toileting, and grooming; moderately in the

areas of chores, shopping, and feeding; and severely in the

areas of exercise, sports, recreation, and travel.

After a careful review of the Veteran's VA treatment records,

VA examinations, and private treatment reports the Board finds

that the Veteran's service-connected IBS and GERD warrants an

increased rating of 60 percent under 38 C.F.R. § 4.114,

Diagnostic Code 7436. The February 2008 VA examiner

specifically stated that she had significant loss of stamina,

weakness, and fatigue due to her service-connected GERD and

IBS. In addition she had daily diarrhea, heartburn, and

regurgitation and weekly constipation. She also had severe

intestinal pain that occurred several times a day. While she

does not have material weight loss, hematemesis or melena with

moderate anemia, the Board finds that she still meets the

criteria for 60 percent because the medical evidence

demonstrates that she has symptom combinations productive of

severe impairment of health.

For all the foregoing reasons, the Board finds the totality of

the evidence warrants an increased rating of 60 percent for the

service-connected IBS and GERD.

Because the Veteran is currently in receipt of the maximum

schedular rating for IBS and GERD, the Board has considered an

extraschedular rating under the provisions of 38 C.F.R. §

3.321(b)(1) (2008). Under 38 C.F.R. § 3.321(b)(1), an

extraschedular evaluation is warranted only if the case

presents such an exceptional or unusual disability picture with

such related factors as marked interference with employment or

frequent periods of hospitalization as to render impractical

the application of the regular schedular standards.

The February 2008 VA examiner stated over the past year the

Veteran lost 11 weeks from work due to her service-connected

disability; however, the Board finds that this was taken into

consideration was granting her the increased 60 percent

disability rating and there is no evidence that shows marked

interference with her employment beyond that contemplated under

her assigned schedular rating. In addition, the Board notes

that the record contains no indication that the Veteran has

been frequently hospitalized for treatment of her service-

connected IBS and GERD.

In summary, although the record shows that the Veteran's IBS

and GERD results in occasional interference with work her

maximum disability rating of 60 percent is in recognition that

her industrial capabilities are severely impaired. After

reviewing the record, the Board is unable to identify an

exceptional or unusual factor which would render impractical

the application of the regular schedular standards. Thus,

referral for consideration of extraschedular rating is not

warranted.

Given these facts, the Board finds that an increased rating of

60 percent, but not higher, for the service-connected IBS and

GERD is warranted.

ORDER

An increased rating of 60 percent for the service-connected IBS

and GERD, subject to the regulations controlling disbursement

of VA monetary benefits, is granted.

____________________________________________

CHERYL L. MASON

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

[Vync]

Your GERD and IBS were combined together? That doesn't sound right. I just won a GERD and IBS claim and they were separate ratings.

My GERD claim used criteria for hiatal hernia, but I do not have a hiatal hernia. The SOC says "This disability is not specifically listed in the rating schedule; therefore, it is rated analogous to a disability in which not only the functions affected, but anatomical localization and symptoms, are closely related."

I don't know if this will help you, but it might.

[pacmanx1]

Your GERD and IBS were combined together? That doesn't sound right. I just won a GERD and IBS claim and they were separate ratings.

My GERD claim used criteria for hiatal hernia, but I do not have a hiatal hernia. The SOC says "This disability is not specifically listed in the rating schedule; therefore, it is rated analogous to a disability in which not only the functions affected, but anatomical localization and symptoms, are closely related."

I don't know if this will help you, but it might.

ScottD has already been rated for GERD and IBS, therefore VA should evaluate his conditions as one condition.

[Vync]

ScottD has already been rated for GERD and IBS, therefore VA should evaluate his conditions as one condition.

I was curious because he indicated his GERD and IBS were combined.

[pacmanx1]

Here is the regulation:

4.7 Higher of two evaluations.Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.

[Vync]

Here is the regulation:

4.7 Higher of two evaluations.Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.

Exactly - I was curious why they applied his GERD and IBS as pyramiding, thus giving him a single rating. They did not do that for me.

[pacmanx1]

7319 Irritable colon syndrome (spastic colitis, mucous colitis, etc.):

Severe; diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress 30

Moderate; frequent episodes of bowel disturbance with abdominal distress 10

Mild; disturbances of bowel function with occasional episodes of abdominal distress 0

7346 Hernia hiatal:

Symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health 60

Persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health 30

With two or more of the symptoms for the 30 percent evaluation of less severity 10

A veteran can have a combination of both symptoms of GERD and IBS that can be combined and rated together without pyramiding.

After a careful review of the Veteran's VA treatment records,

VA examinations, and private treatment reports the Board finds

that the Veteran's service-connected IBS and GERD warrants an

increased rating of 60 percent under 38 C.F.R. § 4.114,

Diagnostic Code 7436. The February 2008 VA examiner

specifically stated that she had significant loss of stamina,

weakness, and fatigue due to her service-connected GERD and

IBS. In addition she had daily diarrhea, heartburn, and

regurgitation and weekly constipation. She also had severe

intestinal pain that occurred several times a day. While she

does not have material weight loss, hematemesis or melena with

moderate anemia, the Board finds that she still meets the

criteria for 60 percent because the medical evidence

demonstrates that she has symptom combinations productive of

severe impairment of health.

Edited September 15, 2010 by pacmanx1