GASTROESOPHAGEAL REFLUX DISEASE (GERD)

J. CONNOLLY · 2024 · Case ID: 24032490

GRANTED

Summary

The veteran, who served from July 1970 to February 1972, appeals the denial of an increased rating for his service-connected gastroesophageal reflux disease (GERD) with a gastric ulcer. The veteran initially claimed service connection for GERD in October 2004, which was granted with a noncompensable rating. The case has a complex procedural history, including multiple remands from the Board and the Court of Appeals for Veterans Claims, with the Court specifically directing the Board to consider if a higher rating was warranted, potentially on an extraschedular basis. The veteran submitted lay statements describing significant symptoms and difficulties in his occupation due to GERD, including pain, dysphagia, and bowel urgency, requiring increased medication and avoidance of heavy lifting. VA examinations provided mixed findings, with some noting intermittent symptoms and others indicating GERD was well-controlled with medication. The Board reviewed the evidence under the criteria for GERD with gastric ulcer (DC 7304) and hiatal hernia (DC 7346), noting that the latter is analogous to the veteran's condition. The Board found that prior to October 3, 2013, the veteran's symptoms, including intermittent epigastric distress and need for medication, warranted a 20 percent rating under DC 7304. From October 3, 2013, the evidence showed persistently recurrent epigastric distress, dysphagia, pyrosis, and reflux, along with other symptoms, warranting a 30 percent rating under DC 7346. The Board denied higher ratings, finding the symptoms did not meet the criteria for severe impairment or unemployability, and that an extraschedular rating was not warranted as the symptoms were contemplated by the schedular criteria. Service connection for GERD with gastric ulcer is granted at 20 percent prior to October 3, 2013, and at 30 percent from October 3, 2013.

Rationale

Prior to October 3, 2013, symptoms met criteria for moderate manifestations under DC 7304.; From October 3, 2013, symptoms met criteria for 30 percent rating under DC 7346.; Higher ratings denied as symptoms did not meet criteria for severe impairment or unemployability.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

06-24 758A

Full Decision Text

Citation Nr: 24032490
Decision Date: 10/31/24 Archive Date: 10/31/24

DOCKET NO. 06-24 758A
DATE: October 31, 2024

ORDER

Entitlement to an initial rating of 20 percent prior to October 3, 2013, and of 30 percent from October 3, 2013 for gastroesophageal reflux disease (GERD) with a gastric ulcer is granted.

FINDING OF FACT

Prior to October 3, 2013, the Veteran's GERD with a gastric ulcer was manifested by continuous moderate manifestations; from October 3, 2013, the Veteran's GERD with a gastric ulcer was manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, and productive of considerable impairment of health.

CONCLUSION OF LAW

The criteria for an initial disability rating of 20 percent for GERD with a gastric ulcer prior to October 3, 2013, and for a 30 percent rating from October 3, 2013, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7704, 7346.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from July 1970 to February 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision by the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for GERD and assigned a noncompensable rating. A timely appeal was noted with respect to the assigned disability evaluation.

In August 2006, the RO recharacterized the issue as GERD with a gastric ulcer and assigned a 10 percent disability evaluation for that disability. The United States Court of Appeals for Veterans Claims (Court) has held that on a claim for an original or increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than the maximum benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Court further held that, where a claimant has filed a notice of disagreement as to a RO decision assigning a particular rating, a subsequent RO decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the appeal. Id. Thus, the issue remains in appellate status.

A Board hearing on this matter was held before the undersigned Acting Veterans Law Judge in May 2008. A copy of the hearing transcript has been associated with the file.

In May 2008, the Board remanded this issue to the RO for further evidentiary development. The matter was remanded again in March 2009.

In September 2009, the RO denied a separate rating for hiatal hernia, noting that the Veteran's service-connected gastrointestinal disability was rated analogous to hiatal hernia, so a separate rating would be pyramiding.

Following the additional development, the Veteran's appeal was returned to the Board. In a February 2010 decision, the Board denied the Veteran's claim.

The Veteran appealed the February 2010 Board decision to the Court. In a May 2011 Memorandum Decision, the Court vacated the February 2010 Board decision and remanded the case to the Board for further readjudication. In pertinent part, the Court indicated that the Board did not adequately consider whether the Veteran should be granted a higher disability rating on an extraschedular basis. The Court pointed to the Veteran's lay statements regarding his difficulties in his current occupation due to his service-connected disability.

In December 2011, the Board remanded this case. In January 2017, when the case was returned to the Board, VA had switched to an electronic system and the Veteran's record was found incomplete, so the Board again remanded this case.

In June 2021, the RO issued a Supplemental Statement of the Case. It was noted that as directed by the Board, the Veteran was sent development letters on September 22, 2017 and June 26, 2020 requesting that he submit any and all documents that he had in his possession that might be pertinent to his claim to include service treatment records. The RO then received from the Veteran on August 24, 2020 a copy of
December 2011, the Board remanded this case. In January 2017, when the case was returned to the Board, VA had switched to an electronic system and the Veteran's record was found incomplete, so the Board again remanded this case.

In June 2021, the RO issued a Supplemental Statement of the Case. It was noted that as directed by the Board, the Veteran was sent development letters on September 22, 2017 and June 26, 2020 requesting that he submit any and all documents that he had in his possession that might be pertinent to his claim to include service treatment records. The RO then received from the Veteran on August 24, 2020 a copy of his DD Form 214, Certificate of Release of Discharge from Active Duty. The RO also received from National Personnel Records Center (NPRC) all available personnel and treatment records which were uploaded to the Veteran's file. The RO made efforts to make the file as complete as possible by contacting the other RO's, pertinent record receptacles, the Veteran, and by rebuilding the file.

Higher Rating

Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

In deciding the Veteran's higher rating claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the Court held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased rating claims.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14.

The Veteran filed a claim for service connection for GERD in October 2004, which was granted by the RO in May 2005. A noncompensable rating was assigned, which is the subject of this appeal.

Turning to the evidence of record, in July 2004, the Veteran reported dysphagia, globus and heartburn that woke him from sleep, with burning and regurgitation in the upper epigastric region. It was discovered that a Nissen fundoplication repair was needed, which was accomplished in August 2004. An October 2004 single contrast esophagogram and UGI studies show a small sliding hiatal hernia with mild gastroesophageal reflux.

On VA examination in April 2005, the Veteran reported a slight weight gain. There was no nausea and/or vomiting, constipation or diarrhea, fistula, malnutrition, or abdominal pain. He was not
.

On VA examination in April 2005, the Veteran reported a slight weight gain. There was no nausea and/or vomiting, constipation or diarrhea, fistula, malnutrition, or abdominal pain. He was not undergoing treatment for GERD symptoms. In August 2005, the Veteran reported stable weight and good appetite. There was no hematemesis or other symptoms of GERD.

In February 2006, the Veteran reported intermittent abdominal pain which woke him at night. There was no relation of the pain to food. There was no nausea or vomiting; no change in bowel movements; or blood in the stool. In April 2006, the abdominal pain was slightly improved. Pain occurred 2 to 3 times per week instead of daily, and was related to overeating. There was no melena, hematochezia, or any other complaints.

A June 2007 medical note indicated the Veteran was being seen for a follow-up clinic visit. The Veteran denied any weight loss and reported feeling well. He was taking prescribed medication. Peptic ulcer disease was noted by history only. Examination findings revealed no tenderness to palpation of the abdomen. The examiner cited a September 2006 esophagogastroduodenoscopy (EGD) report as being okay and stated no regular gastrointestinal follow-up was indicated.

During his March 2008 Board hearing, the Veteran reported that his medications had increased to 2 pills a day and that he could not lift heavy weights due to his GERD symptomatology. He said that the second surgery he had for his stomach problems really weakened him. He also indicated that he could not eat spicy or Italian food. He said that he has stomach pain for which he takes medication and without the medication, the pain was constant. He said that the stomach issue causes bowel problems, and he has to use the bathroom during the night for loose/soft bowels.

The Veteran was afforded another VA examination in October 2008, during which he reported bowel urgency without diarrhea and pain upon exerting the abdominal region. Dysphagia occurred with solid food, twice per week. There was no pyrosis, regurgitation or substernal arm or shoulder pain.

In a clinical note dated the same month, abdominal pain and constipation were reported. However, in a clinical note dated in December 2008, GERD symptoms were noted to be well controlled with lifestyle measures and medication. Bowel movements were regular. There was no dysphagia, nausea or vomiting reported; however, the Veteran did avoid heavy lifting. In June 2009, the Veteran reported no dysphagia to solids or liquids.

In September 2010, the Veteran was seen by VA. He was noted to be stable as well as obese and having bowel urgency for which he was taking fiber. In July 2011, his GERD was noted to be active.

In January 2012, the Veteran was treated on an emergent basis and reported having diarrhea and vomiting since the night before, several episodes of liquid diarrhea with abdominal cramping, and was currently having dry heaves. History of present illness was that the Veteran had a history of GERD, status post Nissen, ulcer disease, history of Barrett's, diverticulosis, and obesity. His recent intake of food was reviewed in conjunction with his symptoms.

A January 2012 VA examination revealed that the Veteran had GERD and Barrett's esophagus. The Veteran had been treated for GERD after symptoms of heartburn since service. By 1996, symptoms became severe. The Veteran had a Nissen fundoplication times two in 1996 and 2004. The Veteran had reported that symptoms worsened again in 2006. He had an EGD done showing ulcer to gastric region and Barret's without dysplasia. He had a repeat EGD in September 2006. The Veteran claimed that symptoms of abdominal discomfort occurred when he exerted himself to the surgical region. He was noted to have a history of hernia to surgical region in 2004. The Veteran claimed that he also noted bowel urgency since his second surgery, although no diarrhea (positive soft stool), and no incontin
burn since service. By 1996, symptoms became severe. The Veteran had a Nissen fundoplication times two in 1996 and 2004. The Veteran had reported that symptoms worsened again in 2006. He had an EGD done showing ulcer to gastric region and Barret's without dysplasia. He had a repeat EGD in September 2006. The Veteran claimed that symptoms of abdominal discomfort occurred when he exerted himself to the surgical region. He was noted to have a history of hernia to surgical region in 2004. The Veteran claimed that he also noted bowel urgency since his second surgery, although no diarrhea (positive soft stool), and no incontinence. He was taking Omeprazole, 20 mg, daily. The Veteran did not have persistently recurrent epigastric distress, but did have infrequent episodes of epigastric distress. He did not have dysphasia, regurgitation, substernal arm or shoulder pain, or sleep disturbance caused by esophageal reflux, but did have pyrosis and reflux of 1-9 days duration. He did not have anemia, weight loss, nausea, vomiting, hematemesis, melena, esophageal stricture, spasm or diverticula. The Veteran did not have any other pertinent physical findings, complications, conditions, signs and/or symptoms. The examiner opined that the Veteran's esophageal conditions did not impact his ability to work.

In March 2012, clinical notes show that the Veteran's GERD was stable, and he was still taking fiber and his medication.

In May 2012, an EGD and colonoscopy were performed. The Veteran had intact Nissen fundiplication; multiple gastric polyps, likely fundic gland polyps; and Barrett's esophagus, and sigmoid diverticulosis.

In January 2013, the Veteran was seen for gastroenteritis.

On October 3, 2013, the Veteran was afforded another VA examination. It was noted that the Veteran was on medication which he would continue to take indefinitely. His current symptoms were infrequent episodes of epigastric distress, dysphagia, pyrosis, and reflux. The Veteran did not have an esophageal stricture, spasm of esophagus (cardiospasm or achalasia), or an acquired diverticulum of the esophagus. The Veteran did not have other pertinent physical findings, complications, conditions, signs and/or symptoms. The examiner indicated that the gastrointestinal impairment would not cause unemployability.

In December 2014, it was noted that the Veteran had to stop lifting at work in conjunction with his hiatal hernia and reflux status post surgical repair, but it was also worsened by his back pain.

On August 19, 2017, the Veteran was afforded a VA examination. He was noted to have GERD, hiatal hernia, Nissen fundoplication, and Barrett's esophagus. The Veteran reported that he had regular episodes of pain in the upper abdomen, trouble swallowing, heartburn, and bloating. He was taking Omeprazole, 20 mg daily, and had undergone Nissen fundoplication which was a surgical procedure to treat GERD and hiatal hernia. The following were noted: persistently recurrent epigastric distress, dysphagia, pyrosis (heartburn, reflux, regurgitation, substernal pain, sleep disturbance (4 times or more per year), transient nausea. He did not have vomiting, hematemesis, or melena. He did not have any other pertinent physical findings, complications, conditions, signs or symptoms. The Veteran reported that it was difficult to work due to the symptoms, he was unable to lift due to the possibility of feeling bloated and due to frequent symptoms nausea; it was also difficult to concentrate. It was noted that Barrett's esophagus occurs when chronic or long-term reflux (regurgitation) of the stomach contents up into the esophagus damages the normal inner lining of the esophagus. This process usually takes many years to happen. Reflux of the stomach contents into the esophagus is sometimes called GERD.

Additional examination revealed that the Veteran had a gastric ulcer which recurred with severe symptoms 4 or more times per year, lasting 1-9 days. He had monthly abdominal pain which was only partially relieved by standard ulcer therapy. It also caused transient nausea lasting less than a day, occurring 4 or more times a year. He did not have vomiting, hematemesis, or melena. He did not have any other pertinent physical findings, complications, conditions, signs or
of the stomach contents up into the esophagus damages the normal inner lining of the esophagus. This process usually takes many years to happen. Reflux of the stomach contents into the esophagus is sometimes called GERD.

Additional examination revealed that the Veteran had a gastric ulcer which recurred with severe symptoms 4 or more times per year, lasting 1-9 days. He had monthly abdominal pain which was only partially relieved by standard ulcer therapy. It also caused transient nausea lasting less than a day, occurring 4 or more times a year. He did not have vomiting, hematemesis, or melena. He did not have any other pertinent physical findings, complications, conditions, signs or symptoms. It was noted that the Veteran had increased abdominal pain and bowel urgency since second surgery (although no diarrhea no incontinence) which occurred 4 times or more per year, and lasted 1-9 days. The Veteran related that it was difficult to work due to the symptoms, he was unable to lift objects, and he felt bloated.

A June 2020 CT of the abdomen revealed a small hiatal hernia with postsurgical changes status post hernia repair. Interval improvement in previously noted diverticular inflammation involving the descending colon was noted. There was also no bowel obstruction.

In May 2021, the Veteran was afforded additional VA examinations. The first examination diagnosed GERD and hiatal hernia. The Veteran reported he started to have difficulty with acid reflux and GERD while in service. Subsequently, he had a Nissen procedure in the 1990's, but he still experiences GERD. He was taking Prilosec, 20 mg p.o., twice daily. The Veteran's current symptoms included dysphagia, pyrosis, and reflux. The Veteran also had sleep disturbance caused by GERD 4 or more times per year which lasted 10 or more days. He also had nausea 4 or more times per year, lasting less than a day. He did not have vomiting, hematemesis, or melena. He did not have any other pertinent physical findings, complications, conditions, signs or symptoms. The Veteran did not have an esophageal stricture, spasm of esophagus (cardiospasm or achalasia), or an acquired diverticulum of the esophagus. The examiner opined that there was no impact on employment.

The Veteran's gastric ulcer was also evaluated. The Prilosec medication also covered treatment for this issue. The ulcer caused mild nausea 4 times or more per year which lasted less than a day. It was not incapacitating.

The examiner indicated that for the diagnosis of GERD with gastric ulcer, there is no change in the diagnosis. The diagnosis has been confirmed on examination. Hiatal hernia and GERD are 2 different conditions. With a hiatal hernia, part of the stomach pushes into the chest cavity. It enters via an opening where the food tube (esophagus) passes on its way to the stomach. Hiatal hernias can have no symptoms. In some cases, they may be associated with heartburn and abdominal discomfort. Hiatal hernias may not require any treatment. Some are treated with drugs and a few types need surgical repair. A digestive disease in which stomach acid or bile irritates the food pipe lining. This is a chronic disease that occurs when stomach acid or bile flows into the food pipe and irritates the lining. Acid reflux and heartburn more than twice a week may indicate GERD. Symptoms include burning pain in the chest that usually occurs after eating and worsens when lying down. Relief from lifestyle changes and over-the-counter medications is usually temporary. Stronger medication may be needed. Hiatal hernia is a separate condition.

The Veteran's GERD with gastric ulcer has been evaluated as analogous to a hiatal hernia under Diagnostic Code 7346. As noted, the Veteran also has a hiatal hernia, and that is considered part of his overall gastrointestinal disability. Under Diagnostic Code 7346, a 10 percent rating (the currently assigned evaluation) is warranted when there is a hiatal hernia with two or more of the symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114, DC 7346. Hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, is rated 30 percent disabling. Hiatal hernia with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate an
is considered part of his overall gastrointestinal disability. Under Diagnostic Code 7346, a 10 percent rating (the currently assigned evaluation) is warranted when there is a hiatal hernia with two or more of the symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114, DC 7346. Hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, is rated 30 percent disabling. Hiatal hernia with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health, is rated 60 percent disabling. 38 C.F.R. § 4.114.

For purposes of evaluating conditions found under 38 C.F.R. § 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. 38 C.F.R. § 4.112. Baseline weight means the average weight for the two-year-period preceding onset of the disease.

The criteria under Diagnostic Code 7346 are conjunctive, not disjunctive; thus, all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991) (use of the conjunctive and in a statutory provision meant that all the conditions listed in the provision must be met). A single evaluation will be assigned under the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. See 38 C.F.R. § 4.114.

In accordance with 38 C.F.R. § 4.114, 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. Thus, in this case, certain other diagnostic codes are for consideration.

Disabilities rated under Diagnostic Code 7304, gastric ulcers, are rated 10 percent disabling when symptoms are mild, with recurring symptoms once or twice yearly. A 20 percent rating is assigned when the disability is moderate, with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations. A 40 percent rating is assigned when the disability is moderately severe, with less than severe symptoms but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four times a year or more. A maximum 60 percent rating under this Diagnostic Code is assigned when the disability is severe, with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health.

Pursuant to Diagnostic Code 7327, diverticulitis is to be rated under either irritable colon syndrome, peritoneal adhesions, or ulcerative colitis, depending upon the predominant disability picture. 38 C.F.R. § 4.114.

Under DC 7301, a 0 percent rating is warranted for mild adhesions of peritoneum. A 10 percent rating is warranted for moderate adhesions with pulling pain on attempting work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension. A 30 percent rating is assigned for evidence of moderately severe peritoneal adhesions with partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain. A 50 percent rating, the highest schedular rating allowed, is assigned for evidence of severe peritoneal adhesions with definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea, or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage.

A note associated with Diagnostic Code 7301 provides that ratings for adhesions will be considered when there is a history of operative or other traumatic or infectious (intraabdominal) process, and at least two of the following: disturbance of motility, actual partial
ions with partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain. A 50 percent rating, the highest schedular rating allowed, is assigned for evidence of severe peritoneal adhesions with definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea, or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage.

Under Diagnostic Code 7323, a 10 percent rating is warranted for moderate symptoms with infrequent exacerbations. A 30 percent rating is warranted for moderately severe symptoms with frequent exacerbations. A 60 percent rating is warranted for severe symptoms with numerous attacks a year and malnutrition, the health only fair during remissions. A 100 percent rating is warranted for pronounced symptoms resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess.

Under Diagnostic Code 7319, irritable bowel syndrome is assigned a 0 percent rating for mild symptoms manifested by disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent rating is warranted for moderate symptoms manifested by frequent episodes of bowel disturbance with abdominal distress. A 30 percent rating is warranted for severe symptoms manifested by diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress.

At the outset, as noted, 38 C.F.R. § 4.114 provides for one rating for the diagnostic code reflecting the predominant disability picture as to the totality of the gastrointestinal disability. It follows that the diagnostic code which therefore provides the highest applicable rating will be used. However, separate diagnostic codes for each diagnosis are not to be used. Likewise, even though the relevant codes cover overlapping symptoms, they do not cover the exact same symptoms. However, the Board finds that an extraschedular rating for the "non-covered" symptom(s) is not warranted because the regulations specifically provide for one rating (non-combined) to be used for the predominant disability with consideration of other symptoms with regard to the overall disability picture.

In this case, as noted, the RO used the rating criteria for hiatal hernia and assigned a 10 percent rating for the whole appeal period. In order for a higher rating of 30 percent to be warranted, the evidence must show persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, is rated 30 percent disabling. As noted, all the listed criteria must be met. See Melson.

On the October 3, 2013 VA examination, a higher level of disability which meets the rating criteria was first shown. The Veteran had infrequent episodes of epigastric distress, dysphagia, pyrosis, and reflux. However, the medication he was taking prevented persistently recurrent epigastric distress which he had without the medication. Contemporaneous records also showed physical complaints that the Board accepts as contemplating substernal or arm or shoulder pain, and his overall disability picture considering all symptoms elevating his total gastrointestinal disability level to the functional equivalent of considerable impairment of health. Thus, as of October 3, 2013, a 30 percent rating is warranted under this code. In order for a higher rating to be warranted, the symptoms must include all of the following: pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. The Board finds that the Veteran's gastrointestinal disorder has not been productive of this level of impairment. He has had isolated vomiting, but never had material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health.

In considering whether a higher rating may be assigned for the Veteran's gastrointestinal impairment based on his gastric ulcer symptoms, prior to October 3, 2013, the evidence must show that his disability was moderate, with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations. The record shows, in considering the lay evidence, that the Veteran's overall disability picture was consistently moderate, taking into consideration his need for medication. Thus, prior to October 3, 2013, a 20 percent rating is warranted. In order for a 40 percent rating to be warranted either before
melena with moderate anemia, or other symptom combinations productive of severe impairment of health.

In considering whether a higher rating may be assigned for the Veteran's gastrointestinal impairment based on his gastric ulcer symptoms, prior to October 3, 2013, the evidence must show that his disability was moderate, with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations. The record shows, in considering the lay evidence, that the Veteran's overall disability picture was consistently moderate, taking into consideration his need for medication. Thus, prior to October 3, 2013, a 20 percent rating is warranted. In order for a 40 percent rating to be warranted either before or after, the disability level must have been moderately severe, with less than severe symptoms but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four times a year or more. However, at no time were those symptoms met.

With regard to the other codes, the Veteran's disability picture has not been more analogous or worse under those codes which are less representative of his gastrointestinal symptoms.

In light of the foregoing, the Board therefore finds that the evidence of record prior to October 3, 2013 reflects that the Veteran's service-connected gastrointestinal disability more nearly approximates a 20 percent rating under Diagnostic Code 7304; and from October 3, 2013, more nearly approximates a 30 percent rating under Diagnostic Code 7346.

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Finally, the Board notes that in exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321. To warrant referral for extraschedular consideration, a disability must be so exceptional or unusual that it renders application of the regular schedular ratings impractical. Long v. Wilkie, 33 Vet. App. 167 (2020); Thun v. Peake, 22 Vet. App. 111 (2008).

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After considering the record, as noted above, the regulations governing gastrointestinal impairment specifically provide for consideration of multiple codes, but the assignment of one rating based on predominant impairment. So, an extraschedular rating is not applicable on that basis. With consideration of the Veteran's lay statements regarding industrial impairment, the Board finds that the symptomatology and impairments caused by the Veteran's gastrointestinal disability are contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The Veteran reported having difficulty working, but VA examiners opined that there was no unemployability. Further, there is no documentation of any loss of time from work, terminations, or any specific impact. There is no specific evidence of marked interference with employment, frequent periods of hospitalization, or other related factors. The relevant rating codes consider overall impairment of health, and the Board has considered the Veteran's lay statements including experiencing industrial difficulty in rating him under the relevant rating criteria which contemplates his symptoms. Thus, the record reflects that the symptoms associated with the Veteran's gastrointestinal impairment are those which are common and reasonably expected symptoms and therefore considered in the rating schedule. Given the record, the Board concludes that referral for extraschedular consideration is not warranted.

J. Connolly

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board D. Mills

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.

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