Citation Nr: 0814721 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 02-21 739 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a disability rating in excess of 30 percent for hiatal hernia with gastrointestinal reflux disease (GERD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Andrew Mack, Associate Counsel INTRODUCTION The veteran served on active duty from September 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a October 2001 decision of the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina (RO), which denied the veteran's claim of entitlement to a disability rating in excess of 30 percent for hiatal hernia. The veteran perfected an appeal. This matter was before the Board in June 2004 and February 2006 and was both times remanded. FINDINGS OF FACT 1. The veteran's hiatal hernia with GERD approximates a 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. 2. The veteran's hiatal hernia with GERD is not productive of symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for a hiatal hernia with GERD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and implemented at 38 C.F.R. § 3.159 (2007), amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, March 2002, June 2002, and June 2004 letters to the veteran from the Agency of Original Jurisdiction (AOJ) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to an increased rating, and the division of responsibility between the veteran and VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007), these letters essentially satisfied the notification requirements of the VCAA by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate his claim; (2) informing the veteran about the information and evidence VA would seek to provide; (3) informing the veteran about the information and evidence he was expected to provide; and (4) requesting that the veteran provide any information or evidence in his possession that pertained to the claim. The Board acknowledges that complete VCAA notice was only provided to the veteran after the initial unfavorable decision in this case, rather than prior to the initial decision as typically required. However, in a case involving the timing of the VCAA notice, the United States Court of Appeals for Veterans Claims (Court) held that in such situations, the appellant has a right to a VCAA content- complying notice and proper subsequent VA process. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A VCAA-compliant letter was issued to the veteran in June 2004. Thereafter, he was afforded an opportunity to respond, and the AOJ then subsequently reviewed the claim and issued a supplemental statement of the case to the veteran as recently as January 2008. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Pelegrini v. Principi, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). Also, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements apply to all five elements of a service connection claim, including the disability rating and effective date of the award. As the Board concludes below that the preponderance is against the veteran's claim for an increased rating, any questions as to the appropriate effective date to be assigned are rendered moot. Therefore, despite any inadequate notice provided to the veteran on this element, the Board finds no prejudice to the veteran in processing the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Furthermore, the Board notes the Court's recent decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In Vazquez- Flores, the Court found that, at a minimum, adequate VCAA notice requires for an increased rating claim requires that: (1) VA notify the claimant that the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) 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 the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. With respect to the first and fourth requirements of Vazquez- Flores, the March 2002, June 2002, and June 2004 letters together notified the veteran that he should provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of his disabilities and the effect that worsening has on the veteran's employment, and informed the veteran of the type of evidence that the veteran should submit or ask VA to obtain that were relevant to establishing entitlement to increased compensation for his disability. With respect to the second and third requirements of Vazquez- Flores, to the extent that the veteran was not provided adequate notice that his disability rating would be determined by applying relevant diagnostic codes, or of the specific criteria of such codes, the Board finds such inadequate notice to be harmless error. On the veteran's original April 2001 claim form, the veteran specifically cited both the Diagnostic Code under which his disability was rated as well as the specific criteria listed under that Diagnostic Code required for a rating in excess of his current rating. Thus, the veteran demonstrated actual knowledge of the specific Diagnostic Code and criteria by which his disability would be rated. The Board therefore finds that the veteran is not prejudiced by a final decision on the merits of the case. Second, VA has a duty under the VCAA to assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002). In this regard, the following are associated with the claims file: the veteran's service medical records, VA and private post-service medical records, several VA examinations, and written statements from the veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the veteran. The Board therefore determines that VA has made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claim. II. Increased rating The veteran argues that he is entitled to a disability rating in excess of 30 percent for hiatal hernia with GERD. Disability evaluations are determined by comparing present symptomatology with the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 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; otherwise, the lower rating is assigned. 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. In order to evaluate the level of disability and any changes in the veteran's condition, it is necessary to consider the complete medical history of the condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate where there are multiple time periods with distinctly different 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. For an increased rating claim, VA focuses on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). The veteran's hiatal hernia with GERD is rated under Diagnostic Code (DC) 7346. Under Diagnostic Code 7346, a 30 percent evaluation is warranted for a 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. A 60 percent evaluation is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, DC 7346. Furthermore, the applicable regulations state that ratings under Diagnostic Codes 7301 to 7329 inclusive, 7331, 7342, and 7345 to 7348 inclusive, are not to be combined with each other. 38 C.F.R. § 4.114. In the instant case, the veteran was given a VA examination in May 1999. The veteran then reported a history of heartburn associated with regurgitation, with symptoms worse at night, no vomiting, and a feeling of food hanging up in the back of his chest. The veteran denied nausea or vomiting recently, although he stated that that had happened in the past. He also reported that his weight was stable, he denied hematemesis, and he denied tarry stools. July 1999 private medical treatment records indicate a history of hiatal hernia with complaints of heartburn, fullness in the chest, indigestion, and bitter taste in mouth. On VA examination in October 2000, the veteran reported epigastric pain on a daily basis, nausea every morning with regurgitation of gastric fluid once every other day, and intermittent dysphagia with both solid and liquid food about every other day. He denied vomiting, hematemesis, or melena. He reported diarrhea once or twice a month, that he had lost 25 pounds over the last two years, which he attributed to difficulty eating, and that he currently weighed 190 pounds. The veteran was noted to be a well-developed, well-nourished male, and was diagnosed as having reflux disease that was suboptimally being managed at the time, as the veteran reported that he was not currently on prescribed medications. VA medical treatment records dated from April 2001 to March 2004 consistently note no history of anorexia, nausea, vomiting, diarrhea, constipation, hematemesis, melena, hepatitis, peptic ulcer disease, or abdominal pain. The veteran was also consistently noted to be well-developed and well-nourished. On August 2001 VA examination, the veteran reported chest pain, not being able to sleep at night, no dysphagia to solid or liquid, no pyrosis but epigastric pain associated with substernal pain, that he did not have any hematemesis or melena, and that he had regurgitation of food and got nausea from time to time. On June 2003 VA examination, the veteran reported epigastric pain, that he could still eat solids and liquid food, pyrosis, but no hematemesis, melena, or regurgitation, and that the had not lost weight. The veteran was afforded a VA examination in July 2005. On examination, the veteran reported complaints of dysphagia with any soft foods but denied difficulty with liquids. He also reported epigastric pain that occasionally radiated to his left arm, that he previously had episodes of hematemesis and melena, but denied them currently, that he had constant reflux and reported a gagging feeling that was productive of saliva periodically, and he denied any nausea or vomiting. On examination, the veteran weighed 195 pounds, and described his general state of heath as good, but had decreased periods of health because of constant episodes of hyperglycemia with exertion. There was noted to be no signs suggestive of anemia. The veteran reported that he previously weighed 230 pounds and his weight got down as low as 189 pounds, but he was gradually gaining weight back. After reviewing the record, the Board finds that the veteran's hiatal hernia with gastrointestinal reflux disease does not more closely approximate the criteria for a 60 percent disability rating under DC 7346 than those for a 30 percent disability rating. The record does not reflect that the veteran's disability is productive of 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 Board notes that on May 1999 VA examination the veteran reported that nausea or vomiting had happened in the past, though not recently, and, on July 2005 VA examination, the veteran reported that he previously had episodes of hematemesis and melena, but denied them currently. However, on VA examinations, from May 1999 to July 2005, the veteran has consistently been noted to have no symptoms of vomiting, hematemesis, or melena. Also, VA medical treatment records from April 2001 to March 2004 consistently note no history of anorexia, nausea, vomiting, diarrhea, constipation, hematemesis, melena, hepatitis, peptic ulcer disease, weight loss, or abdominal pain. The Board notes the veteran's consistent complaints of epigastric pain, as well as his occasional complaints of regurgitation, pyrosis, dysphagia, and pain occasionally reradiating to the arm, on VA examinations. The Board moreover finds that, as reflected in the medical record, this symptomatology has characterized the veteran's hiatal hernia with GERD. However a 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, are the criteria for a 30 percent disability rating under DC 7346. As the medical record reflects that the veteran's disability manifests these symptoms primarily, the Board finds a 30 percent disability rating to be appropriate for the veteran's hiatal hernia with GERD. The Board notes that, on October 2000 VA examination, the veteran reported that he then weighed 190 pounds, and that he had lost 25 pounds over the last two years, which he attributed to difficulty eating. The Board also notes that, on July 2005 VA examination, the veteran weighed 195 pounds, and reported that he previously weighed 230 pounds and that his weight got down as low as 189 pounds, but that he was gradually gaining weight back. The Board furthermore notes that material weight loss is one of the criterions for a 60 percent disability rating under DC 7346. However, although the veteran may have lost weight prior to his October 2000 VA examination as he reported, the veteran has maintained his weight of approximately 190 to 195 pounds throughout the appeals period, and VA treatment records from April 2001 to March 2004 consistently note the veteran to be well-developed and well-nourished. Thus, for the purposes of DC 7346, the Board does not find that he veteran's hernia with gastrointestinal reflux disease has been productive of material weight loss such that symptom is, or combines with other symptoms to be, productive of severe impairment of health. Moreover, the Board notes that the record does not reflect any symptom combinations due to hernia with gastrointestinal reflux disease productive of severe impairment of health. In this regard, the Board also notes that, on July 2005 VA examination, the veteran described his general state of heath as good, but indicated that he had decreased periods of health because of constant episodes of hyperglycemia with exertion. In light of the evidence of record, the Board finds the veteran's hiatal hernia with gastrointestinal reflux disease symptomatology to approximate symptomatology productive of considerable impairment of health more closely than symptomatology productive of severe impairment of health. Accordingly, a disability rating in excess of 30 percent for hiatal hernia with gastrointestinal reflux disease is not warranted. The Board notes that the veteran is free to submit additional evidence in the future to support a claim for an increased disability rating, such as additional medical evidence that his disability has gotten worse. In reaching these determinations, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the veteran's claim, the doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a disability rating in excess of 30 percent for hiatal hernia with gastrointestinal reflux disease is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs