Citation Nr: 0810557 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 05-40 119 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to a rating in excess of 30 percent for a hiatal hernia. ATTORNEY FOR THE BOARD Eric S. Leboff, Counsel INTRODUCTION The veteran had active service from March 1967 until May 1969. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in North Little Rock, Arkansas. In his substantive appeal, the veteran requested a hearing before a Veterans Law Judge sitting at the RO. In later correspondence dated in December 2005, he amended his request to a video hearing. Such hearing was scheduled in August 2006, but the evidence of records reveals that he failed to report. FINDING OF FACT Throughout the rating period on appeal, the veteran's hiatal hernia has been productive of complaints of symptoms including substernal chest pain and vomiting, with no material weight loss, hematemesis or melena with moderate anemia. CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 30 percent for a hiatal hernia have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.114, Diagnostic Code (DC) 7346 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (rating schedule), which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 C.F.R. § 4.1. In addition, 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. See 38 C.F.R. § 4.7 (2007). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). As is the case here, where entitlement to compensation has already 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, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). The veteran's claim of entitlement to an increased rating was received in March 2005. Throughout the rating period on appeal, he has been assigned a 30 percent rating for hiatal hernia pursuant to DC 7346. Under the provisions of DC 7346, a 30 percent evaluation applies where the evidence shows persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. To be entitled to the next-higher 60 percent evaluation, the evidence must demonstrate 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. The pertinent evidence of record includes a December 2004 VA clinical report reflecting complaints of chronic nausea and bloating after meals. Vomiting was also reported in another December 2004 record. The veteran denied any difficulty swallowing at that time. However, he felt that food was getting stuck just below the breast bone, requiring him to vomit to obtain relief. His symptoms always occurred following a heavy meal, and occasionally occurred following a lighter meal. Upon VA examination in June 2005, the veteran reported daily gastrointestinal symptoms including vomiting after meals, intermittent espophageal dysphagia, and burning substernal chest pain usually followed by gastroesophageal reflux. He further noted weight loss of 3-4 pounds over the past 3 to 4 months, but had stable weight over the past year. He denied hematemisis, melena, bright red blood per rectum, diarrhea, or lower gastrointestinal-related symptoms. He missed 17 days of work in the last year due to his gastrointestinal problems. Objectively, the June 2005 VA examination revealed a soft abdomen, with moderate tenderness to palpation in the epigastric region without rebound or guarding. The final diagnosis was hiatal hernia with associated pyrosis, gastroesophageal reflux disease, dysphagia, and chest pain. Based on the evidence of record, as detailed above, the Board finds that the veteran's disability picture does not most nearly approximate the next-higher 60 percent rating under DC 7346. Indeed, there is no demonstration of material weight loss. Rather, he stated at his June 2005 VA examination that he had lost only 3 to 4 pounds and that his weight was actually stable over the period of a year. The evidence also fails to demonstrate hematemesis or melena with moderate anemia. The Board acknowledges the veteran's complaints of daily substernal chest pain and daily vomiting. In this regard, he is competent to provide testimony as to observable symptoms that he has experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, his reports of neck pain are consistent with the evidence of record and are found to be credible. However, such reported symptoms are not found to warrant a higher rating here. Indeed, with respect to the complaints of substernal chest pain, it is noted that epigastric distress is already contemplated under the currently-assigned 30 percent evaluation. The Board recognizes that vomiting is among the criteria consistent with a 60 percent evaluation. However, given the absence of any other symptoms associated with a 60 percent evaluation, and considering that the evidence fails to indicate that the vomiting has led to severe impairment of health, the Board finds that the current rating percentage is more reflective of his degree of disability. The Board has considered whether any alternate diagnostic codes could be applied in the present case, but finds that none are relevant here. In sum, the evidence of record does not support a rating in excess of 30 percent for a hiatal hernia for any portion of the rating period on appeal. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Finally, although the veteran has reported that he missed 17 days of work due to his service-connected hiatal hernia, the evidence nevertheless fails to reflect that such disability has caused "marked" interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Hence, assignment of an extra- schedular evaluation under 38 C.F.R. § 3.321 (2007) is not warranted. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). For an increased-compensation claim, § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect that such worsening or increase has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement. VA must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. In this case, a letter satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the veteran in April 2005, prior to the initial RO decision that is the subject of this appeal. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession to the RO. Moreover, with respect to the Dingess requirements, the veteran was given notice of what type of information and evidence he needed to substantiate his claim for an increased rating as this is the premise of the claim. It is therefore inherent that the he had actual knowledge of the rating element of the claim. In addition, he was provided with notice of the type of evidence necessary to establish an effective date for the disability on appeal by correspondence dated in March 2006. Any questions as to the appropriate effective date to be assigned are moot as the claim has been denied. The Board acknowledges that the VCAA letter sent to the veteran in April 2005 does not meet the requirements of Vazquez-Flores and is not sufficient as to content and timing, creating a presumption of prejudice. Nonetheless, such presumption has been overcome for the reasons discussed below. In this case, the veteran was provided with correspondence regarding what was needed to support his claim. Specifically, the November 2005 statement of the case set forth the diagnostic criteria for the disability at issue and also included the provisions of 38 C.F.R. §§ 3.321 and 4.1, which reference impairment in earning capacity as a rating consideration. Furthermore, a March 2006 Dingess letter apprised him of the need to show the nature and symptoms of his condition and the impact of his disability on his employment. Based on the above, the veteran can be expected to understand what was needed to support his claim, including the impact of his disability on his daily life and ability to work. Moreover, the veteran demonstrated actual knowledge of what was needed to support his claim as reflected in his statements. For example, in his substantive appeal, he explained how his disability affected his daily life by noting that he vomited everything he ate and that he had lost 20 pounds in the last two months. Based on the above, the notice deficiencies do not affect the essential fairness of the adjudication. Therefore, the presumption of prejudice is rebutted. For this reason, no further development is required regarding the duty to notify. Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains his post- service reports of VA treatment and examination. Moreover, his statements in support of his claim are of record. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to his claim. For the above reasons, no further notice or assistance to the veteran is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to a rating in excess of 30 percent for hiatal hernia is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs