38 CFR 4.114 - Pyramiding GERD & IBS

[bellrungboxer]

Has anyone here ever received a separate rating for GERD and IBS? 

I had claims for Diverticulitis, IBS & GERD, and it appears that they have lumped Diverticulitis and IBS together, but GERD is its own condition and I'm trying to figure out why. The IBS claim was not listed in my STRs and it is claimed as secondary to SC anxiety. This was backed up by my VA doctors, and should be rated at a 30%, but the raters combined it with Diverticulitis and gave it a SC 0% rating (will be appealed soon).

GERD was listed in my STRs and I have two VA Doctor's medical opinions that it is worsened by SC anxiety. The original claim was due to the diagnosis in my STRs, and it is in appeals because they denied it because they deemed that it had no functional impact on my life and was not chronic enough. I have all the symptoms to meet the 30% requirement and I have a C&P exam through QTC tomorrow for the deferred GERD claim.

Very strange that they haven't moved them together to give one 30% rather two, but I won't complain...I just want to know if it is possible/has ever been done?

 

[Vync]

I was initially rated separately for IBS and GERD. Later, the VA combined it due to pyramiding, but they way they did it had no impact on my combined rating %. They evaluated each rating independently and assigned the higher rating % that "reflects the predominant disability picture" per the pyramiding reg.

This is the main pyramiding regulation, but it is rather vague and the VA takes advantage of it's open-ended nature.

https://www.law.cornell.edu/cfr/text/38/4.14

Quote

§ 4.14 Avoidance of pyramiding.

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 are to be avoided.

 

I found a BVA decision where the veteran had diverticulitis, GERD, and IBS. This is what they said about pyramiding:

Quote

In this case, the Veteran's diverticulitis is an abdominal 
disorder rated under diagnostic code (Code or DC) 7327 and 
thus is among the disabilities for which assignment of a 
separate is prohibited under 38 C.F.R. § 4.114.  In 
considering the rating below, we note that GERD, IBS, hiatal 
hernia, H-pylori and diverticulitis have each been separately 
considered and the highest possible evaluation has been 
awarded on review of all appropriate Codes.  The Board again 
reiterates, however, that 38 C.F.R. § 4.113 prohibits the 
assignment of separate evaluations, and under 38 C.F.R. § 
4.114, "[a] single evaluation will be assigned" for disease 
of the digestive system, including diverticulitis.  Here 
diverticulitis is explicitly considered below in the 
assignment of a 60 rating for GERD (DC 7307) with IBS (DC 
7319), hiatal hernia (DC 7346), H-pylori (DC 7305) and 
diverticulitis, and cannot warrant a separate rating.  38 
C.F.R. §§ 4.113, 4.114 (2009).

 

Personally, I feel the the VA screws veterans out of fair benefits when they use this part of the regulation, which I refer to as their "pyramiding paragraph":

Quote

§ 4.114 Schedule of ratings - digestive system.

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.

The esophagus, stomach, and colon are all separate organs, but they tend to roll them all together and treat them as the same body part, i.e. "reflects the predominant disability picture". I speculate that this paragraph may have been added to the benefit of the VARO in processing claims, but at detriment to the veteran.

[Vync]

1 hour ago, bellrungboxer said:

Thanks @Vync

I had my GERD C&P exam this morning and I'm not confident that it went well.

The NP didn't have my records, admitted she would know less than my GI doc at the VA (who claims it is related to SC anxiety), and she was looking up information about GERD treatment on her phone!

Top it all off, when I gave her my copies of my records I brought and said "the evidence is in here but the VA refuses to look at it" she piped back telling me that if the proof isnt there the raters will deny because of "so many people faking to get free money".

I'll be filling out my survey card and we will see how things go

Yikes!

Well, they had to bring in less experienced personnel (NP's and PA's) to help back fill the C&P exams because they were being overwhelmed.

It might be worthy of a call to the WH VA Hotline to report the faking/free money comment. That's anti-veteran and unprofessional. What a moron.

 

If you are already SC for each condition, it just boils down to determining the current level of disability.

Remember that if you were already SC and became qualified for a higher rating within the past 12 months, all you need are medical records showing that. With the way they roll the gastro ratings together, I imagine they would only adjust your percentage if it the highest % increased or decreased.

When I filed for my increase, I made sure that the evidence for the disability consistently met the criteria required for the higher rating. It wasn't a routine re-eval that they sometimes do. I initiated the increase. If it is something the rater can easily interpret, they will do that. Sometimes they need to send them to a C&P doc for interpretation. Other times, like for MH ratings, they may simply request an in-person C&P if a recent DBQ is not on file.

[bellrungboxer]

Thanks @Vync

I had my GERD C&P exam this morning and I'm not confident that it went well.

The NP didn't have my records, admitted she would know less than my GI doc at the VA (who claims it is related to SC anxiety), and she was looking up information about GERD treatment on her phone!

Top it all off, when I gave her my copies of my records I brought and said "the evidence is in here but the VA refuses to look at it" she piped back telling me that if the proof isnt there the raters will deny because of "so many people faking to get free money".

I'll be filling out my survey card and we will see how things go

[bellrungboxer]

I submitted the online survey and I'll look up how to contact the WH phone # for good measure.

Hopefully they will give GERD the service connection needed, rate it to 30% and then I can start the process of getting the effective date changed. May even challenge the effective date of my migraine increase because I submitted my journal that went back to June and they set the date to receipt of request in October. 

** I contacted the WH hotline and told them about this experience (there was even more that went wrong at this C&P) and the guy who answered was floored. He said that everyone has stories about bad C&P exams, but that mine was beyond belief. They asked if I wanted a new C&P done, but I said I would request that if denied. He then told me he was forwarding my account to the undersecretary.

Edited March 18, 2020 by bellrungboxer

[Vync]

I'm glad you called the hotline. A new C&P exam is useless if the information is in your treatment records and is relatively recent.

I have heard of some odd C&P exams, but some people just have no clue. I did have a neuro C&P in the late 90's that was unusual. The doc was eating from a submarine sandwich periodically during the exam.

[bellrungboxer]

That...is definitely odd. Why can't more C&P exams come with snack opportunities? 

The WH hotline was also surprised when I informed him that I was never screened for COVID-19, there was a man who had just been in the patient room coughing his lungs out in the lobby with no mask on, and I had to ask them to sanitize the patient room before I went in. This place more resembled a place you would go to sell one of your kidneys on the black market than a health care provider's office. Just yikes all around.

 

I should have everything that I need in my treatment records while in service and at the VA. The previous denial is because the rater did not see "enough evidence between diagnosis in service and current diagnosis to establish a chronic issue". This was how the topic of evidence came up because I told her that when you have GERD and don't have health insurance, you don't go and see the doctor multiple times about heartburn/nausea/regurge....you take some OTC meds, change your diet, and hope for the best. Luckily, I had a patient record from back in 2015 showing that I saw a doctor for chest pain radiating to back and arm with nausea/heartburn where I was sent to get a gallbladder scan that showed no issues. Hopefully, they don't make me dig for more between 2010 and 2015...but I wouldn't put it past them.