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Gerd And Ibs


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#1 pete992

 
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Posted 13 September 2010 - 03:39 PM

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

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#2 Scott D

 
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Posted 14 September 2010 - 03:44 PM

I am about to file an increase for a similar situation mentioned in this case. How is the best way to go about mentioning this decision. Do I cite this case, or wait to see what VA decision is on on my increase?

#3 pete992

 
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Posted 14 September 2010 - 04:10 PM

I am about to file an increase for a similar situation mentioned in this case. How is the best way to go about mentioning this decision. Do I cite this case, or wait to see what VA decision is on on my increase?


What are your service connected disabilities including their rating percentages?

#4 Scott D

 
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Posted 14 September 2010 - 04:48 PM

What are your service connected disabilities including their rating percentages?


0% for GERD and IBS combined. It was 30% when grouped with esoshagus stricure in error. upon appeal for incorrect grouping the Stricutre was moved to its own dx code and the GERB/IBS magically became zero.

#5 pete992

 
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Posted 14 September 2010 - 05:07 PM

When you file your claim for an increase for GERD and IBS, ask for the maximum rating allowed. You will need medical documentation that your condition has gotten worst. In your 2005 decision VA stated that you did not have credible symptoms. So that means, when you begin to have symptoms, you need to be treated so the symptoms can be documented. I would also suggest that you need to see an Internal Medicine doctor to evaluate your condition. If you have any hospitalizations or emergency room visits they would help document your condition also.

#6 Scott D

 
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Posted 14 September 2010 - 09:53 PM

I have had a pretty extensive treatment with multiple GI doctors and allergy specialists. Most of the treatment has been post separation, and they had chosen to ignore the submitted documentation. Thanks.

#7 pete992

 
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Posted 14 September 2010 - 10:52 PM

I have had a pretty extensive treatment with multiple GI doctors and allergy specialists. Most of the treatment has been post separation, and they had chosen to ignore the submitted documentation. Thanks


What type of documentation did they ignore?

#8 Vync

 
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Posted 15 September 2010 - 07:03 AM

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.

#9 pete992

 
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Posted 15 September 2010 - 08:06 AM

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.




#10 Vync

 
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Posted 15 September 2010 - 08:10 AM


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.

#11 pete992

 
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Posted 15 September 2010 - 08:16 AM

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.

#12 Vync

 
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Posted 15 September 2010 - 08:28 AM

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.

#13 pete992

 
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Posted 15 September 2010 - 08:59 AM

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 by pete992, 15 September 2010 - 09:01 AM.


#14 Scott D

 
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Posted 15 September 2010 - 09:10 AM

As far as seperate ratings is concerned the VA follows this guidance:

§4.113 Coexisting abdominal conditions.

There are diseases of the digestive system, particularly within the abdomen, which, 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. Consequently, 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.


I do have hiatal hernia, GERB, and IBS. The VA has my records from private treatment, which continues to demonstrate severve IBS conditions and hiatal hernia conditions. The VA assumed that regurguatation due to GERD is the same as throwing up due to food impaction (stricture). They also state that daily diarrhea is reason for 0% rating. They did not address abdominal distress.

#15 pete992

 
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Posted 15 September 2010 - 09:16 AM

Scott D, I do not understand why VA stated that you do not have credible symptoms?

#16 Scott D

 
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Posted 15 September 2010 - 10:54 AM

Attached is the intial decision the VA gave me upon seperation. You will find credible symtpoms listed. It is very frustrating.

To add to that, I was under the impression for quite some time that I had filed a Form 9 to appeal these decisions. I was led to belive this by my VSO. After waiting for over a year I finally checked with the VA and the form was never filed.

Attached File  VA GERD Initial.pdf   242.32KB   44 downloads

Edited by Scott D, 15 September 2010 - 10:55 AM.


#17 pete992

 
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Posted 15 September 2010 - 11:57 AM

Is there any more to this rating decision regarding your GERD and IBS? Normally VA will state in their decision what would warrant a higher rating percentage.

#18 Scott D

 
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Posted 15 September 2010 - 12:12 PM

Here is the last paragraph. I did not see it on the next page of the letter.

An evaluation of 30% is assigned from April 28, 2005. An evaluation of 30 percent is granted if the record shows persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain which is productive of considerable impairment of health. A higher evaluation of 60 percent is not warranted unless there are symptoms of pain, vomiting, material weight loss, and hematemesis or melena with anemia, and other symptom combinations productive of severe impairment of health.

#19 pete992

 
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Posted 15 September 2010 - 12:29 PM

Have you ever been prescribe medication for these conditions and how often?

Edited by pete992, 15 September 2010 - 12:30 PM.


#20 Scott D

 
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Posted 15 September 2010 - 01:00 PM

Yes I have been on medication for these. Most were started while in service. I do not take anything as of today as they did not work well. I was working with my allergist last year to try and find other soulitons, because I have difficulty swallowing pills. I have changed insurance providers and have not been to a DR since the year started. The last two were for IBS. Medication was to be used daily.

Nexium
Aciphex
Metoclopramide
Konsil-D
Paxil

#21 pete992

 
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Posted 15 September 2010 - 01:48 PM

This is just my opinion but I think that you were low balled. If the evidence that you state is in your records, VA should have awarded you at least 60% for the GERD and IBS combined. You were also screwed by your VSO who did not file your VA Form 9. Now you have to file for an increase and ask for the maximum rating allowed. You can also state in your claim that you feel that you meet the 60% rating due to your symptoms.


Did you win a BVA decision or a DRO hearing/review decision?

This maybe a CUE? I would strongly suggest that you see an internal medicine doctor and get an IMO on the evidence of your 2005 claim. If the evidence in 2005 warrants a 60% rating then VA made an error in their decision. This maybe a fight but that is up to you.







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