Citation Nr: 0022310 Decision Date: 08/23/00 Archive Date: 08/25/00 DOCKET NO. 98-16 171A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an increased disability rating for the veteran's service-connected hiatal hernia, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P.B. Werdal, Counsel INTRODUCTION The veteran served on active duty from September 1956 to September 1960, and from November 1960 to May 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Phoenix, Arizona, Department of Veterans Affairs (VA) Regional Office (RO) dated in February 1998 which, inter alia, increased the disability rating for the veteran's service-connected hiatal hernia from a noncompensable rating to 10 percent. FINDINGS OF FACT 1. All relevant evidence has been obtained and considered by the Board. 2. The symptoms and manifestations of the veteran's service- connected hiatal hernia disability include epigastric pain, dysphagia, nausea, vomiting, reflux, pyrosis and substernal and arm pain. CONCLUSION OF LAW A disability rating of more than 10 percent is not warranted for the veteran's service-connected hiatal hernia. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.115, Diagnostic Code 7346 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background In a rating decision dated in August 1983, service connection was granted for hiatal hernia, and the disability was assigned a noncompensable disability rating. In June 1997 the veteran filed a claim seeking an increased rating, explaining that his hiatal hernia had become so severe he had to take Tagamet(r) or a similar medication every day. In a September 1997 VA Compensation and Pension examination the veteran's complaints of weekly episodes of heartburn and dyspepsia were noted. He reported he took Tagament(r) twice a day, and that improved his symptoms significantly. He added that for breakthrough heartburn he took Gaviscon(r). He also reported intermittent lower abdominal pain once or twice each month. The examiner's assessment was gastroesophageal reflux disease, well-controlled with H2 receptor antagonist. The veteran had mild breakthrough symptoms, controlled by antacid. The examiner concluded that the problem does not cause the veteran any significant distress, although he does require medicine. In a February 1998 rating decision the disability rating for hiatal hernia was increased to 10 percent. Service department treatment records were obtained and showed 1996 complaints of epigastric pain and dysphagia weekly, nausea, vomiting, reflux relieved with TUMS(r). In March 1998, the veteran sought treatment and complained of gastroesophageal reflux disease symptoms. He was treated with Tagamet(r) and Prilosec(r). An esophagogastroduodenoscopy (EGD) with biopsy was performed in May 1998; the results of that procedure were interpreted to show a slight irregular gastroesophageal junction. In June 1998 the veteran expressed disagreement with the 10 percent rating assigned for his hiatal hernia. He explained that he has persistent recurring burning pain in his sternum, regurgitation, reflux and pain in the left chest and arm. He added that two physicians at a service department medical facility determined the chest and arm pains are attributable to his hernia, but the Board reviewed those records received in response to a 1997 request and note they contain no opinion linking the pains to the veteran's hiatal hernia. He added that he is treated at a VA hospital for his hiatal hernia, and uses antacids, Prilosec(r) and Tagamet(r). VA treatment records added to the claims folder show the veteran was examined at a service department medical facility in June 1998 for treatment of persistent symptoms of hiatal hernia and gastroesophageal reflux disease. He was referred to VA's gastroenterology clinic for follow-up on the EGD. In July 1998 a VA Compensation and Pension examination was performed without the benefit of the veteran's claims folder or the medical record. Upon examination he was in no acute distress, vital signs were stable, he was afebrile, heart and lung examinations were within normal limits, his abdomen was soft, nontender, nondistended, bowel sounds were positive, no hepatosplenomegaly and no masses were appreciated. The relevant impression was gastroesophageal reflux disease, well-followed, with relief from Lansoprazole. In a Statement of the Case issued in August 1998 the RO explained that a higher rating was not warranted because the veteran did not have symptomatology indicative of a higher level of impairment. In October 1998 the veteran perfected his appeal by arguing his hiatal hernia should be rated 30 percent disabling because he has persistent (almost daily), recurrent epigastric distress with dysphagia, pyrosis and regurgitation accompanied by substernal pain, making it almost impossible for him to function. He countered that it is not well controlled by medication, even though he takes twice the usual dose of Prilosec(r). Another VA Compensation and Pension examination was performed in January 2000, this time with the benefit of the claims folder. The examiner noted the veteran's reported Prilosec(r) controlled his symptoms but he was unable to take it daily because of its side effects. He stated the veteran wakes from sleep, presumably with discomfort from his hiatal hernia. No dysphagia was noted, nor was melena. The veteran complained of daily reflux or regurgitation. Nausea and vomiting was reported to occur 2 to 4 times per month at night. Current treatment consisted of Prilosec(r). Upon examination the veteran's abdomen was nontender, nondistended, with positive bowel sounds and negative [illegible]. No weight loss was noted, and the examiner noted "good nutritional status." The examiner referred to the May 1998 EGD, and stated that, "as [the veteran] w[ith] recent EGD finds consistent with [gastroesophageal reflux disease], no further studies indicated. Will change Prilosec(r) to Lansoprazole." The examiner did not respond to an inquiry on the examination report regarding pyrosis, epigastric or other pain, including associated substernal or arm pain. The veteran was furnished a Supplemental Statement of the Case dated in January 2000. Laws and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (1999). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). When a question arises as to which of two evaluations shall be assigned, 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 (1999). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3 (1999). In AB v. Brown, 6 Vet. App. 35 (1993), the United States Court of Appeals for Veterans Claims (Court) held that, regarding a claim for an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation and it follows that such a claim remains in controversy where, as here when the RO granted a 10 percent rating in February 1998, less than the maximum available benefit is awarded. Disability due to hiatal hernia is rated under 38 C.F.R. § 4.115, Diagnostic Code 7346. Symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health are rated 60 percent disabling. 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. With two or more of the symptoms for the 30 percent evaluation of less severity, a 10 percent rating is warranted. Analysis The Board is satisfied that the record before it contains all relevant medical evidence in existence that is necessary to permit a fair resolution of this appeal. The veteran has the following service-connected disabilities: osteoarthritis, lumbosacral spine with limitation of motion, rated 40 percent disabling; Peyronie's disease, rated 20 percent disabling; Dupuytren's contractures of both hands, rated 10 percent disabling; osteoarthritis of both knees, each rated 10 percent disabling; bursitis with degenerative changes in both hips, each hip rated 10 percent disabling; plantar fasciitis, bilaterally, rated 10 percent disabling; osteoarthritis of the thoracic spine, rated 10 percent disabling; osteoarthritis of the cervical spine, rated 10 percent disabling; and acne, hemorrhoids, residuals of fracture of the right clavicle, each of which is assigned a noncompensable rating. The veteran's combined service- connected disability rating is 80 percent. He argues that a 30 percent rating is warranted for his hiatal hernia. The evidence reveals that he does experience dysphagia, pain, vomiting, pyrosis and regurgitation. Furthermore, although the medical record before the Board does not confirm the presence of substernal or arm pain, the veteran asserts that he experiences that pain and the Board finds his assertions in that regard to be credible evidence of their existence. However, the record does not show the veteran has sustained material weight loss, hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. Similarly, the record does not show the veteran's hiatal hernia symptoms have caused considerable impairment of health. It is correctly argued on the veteran's behalf that to warrant a higher rating, the veteran need not experience all the symptoms identified in the rating schedule for a 30 percent or 60 percent rating. The Board points out, however, that the symptoms the veteran experiences must be productive of at least considerable impairment of health to warrant a higher rating. As the record does not suggest the hiatal hernia has caused an impairment of the veteran's health that could be fairly and accurately characterized as either considerable or severe, the Board finds there is no factual support for a decision that the veteran suffers a level of impairment that warrants a higher disability rating. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.115, Diagnostic Code 7346 (1999). Following careful consideration of the evidence, the Board concludes there is no credible evidence that the manifestations of the veteran's service-connected hiatal hernia results in marked functional impairment or adversely affects the veteran's industrial capabilities in a way or to a degree other than that addressed by VA's Rating Schedule. In that regard, the Board points out that disability evaluations are based on average impairment of earning capacity. An extraschedular evaluation is available by regulation if the manifestations of the hiatal hernia present such an unusual or exceptional disability picture as to render the application of the regular schedular standards impractical. 38 C.F.R. § 3.321(b)(1). An exceptional case includes such factors as "marked interference with employment or frequent periods of hospitalization as to render impractical the application of regular rating standards." Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992). The test is a stringent one for, as the Court has held, "it is necessary that the record reflect some factor which takes the claimant outside the norm. . . The sole fact a claimant is unemployed or has difficulty obtaining employment is not enough." Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The evidence in this case does not reveal frequent hospitalizations for treatment of the hiatal hernia, nor marked functional impairment from an industrial standpoint. Accordingly, no additional action is required under 38 C.F.R. § 3.321(b)(1). If the positive and negative evidence was in approximate equipoise, the law requires that the benefit sought be granted, as the claimant is entitled to the benefit of the doubt. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (1999). In this case, however, the positive and negative evidence is not in equipoise. Accordingly, the benefit of the doubt does not apply. ORDER Entitlement to a disability rating in excess of 10 percent for the veteran's service-connected hiatal hernia is not warranted, and the appeal is denied. A. BRYANT Member, Board of Veterans' Appeals - 8 - - 1 -