Citation Nr: 1309544 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 09-21 639 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an initial compensable (greater than 0 percent) rating for hiatal hernia. ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran had active duty service from August 1997 to December 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2008 of a Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The appeal of the Veteran originally included a claim for service connection for asthma (claimed as shortness of breath). In a rating decision in May 2009, the RO granted service connection for asthma effective the date the Veteran's claim was received and awarded a 10 percent rating. This is considered a full grant of the benefit sought on the appeal for the claim of service connection for asthma. FINDINGS OF FACT The Veteran's hiatal hernia is manifested by heartburn, acid reflux, nausea, and bloating that is well-controlled by medication; there is no indication of dysphagia, accompanied by substernal arm or shoulder pain, or other evidence indicating considerable impairment of health. CONCLUSION OF LAW The criteria for a 10 percent rating, but no greater, for hiatal hernia have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.321, Part 4, 4.7, 4.114, Diagnostic Code 7346 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre- VCAA notice by letter, dated in September 2007. The notice included the type of evidence needed to substantiate the underlying claims of service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service. The Veteran was notified that VA would obtain service treatment records, VA records, and records from other Federal agencies, and that she could submit other records not in the custody of a Federal agency, such as private medical records or with her authorization VA would obtain any non-Federal records on her behalf. The notice included the provisions for the effective date of a claim and for the degree of disability assignable. Where, as here, service connection has been granted and the initial disability rating has been assigned, the claim of service connection has been more than substantiated, the claim has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once the claim of service connection has been substantiated, the filing of a notice of disagreement with the RO's decision rating the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for an initial higher rating for hiatal hernia. Dingess, 19 Vet. App. 473, 490; Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (38 C.F.R. § 3.159 notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Peake, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of a disability and the effect that worsening has on employment). Further VCAA notice is not required. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The RO has obtained service treatment records, VA records, and provided the Veteran a VA examination in March 2008. The report of the VA examination included a review of the Veteran's medical history, including an interview and an examination of the Veteran, and a review of the available VA outpatient notes, as well as sufficient findings to rate disability. Therefore, the Board concludes that the VA examination is adequate. 38 C.F.R. § 4.2; see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board acknowledges that VA examiner did not review the claims file with the service treatment records and VAMC outpatient records. However, he did report that the Veteran was diagnosed with a hiatal hernia in service in 2002 when an EGD was performed. He also interviewed the Veteran, the VAMC treatment notes were available to the examiner online, and the findings otherwise described the relevant symptomatology. Further, as the examiner lacked only service treatment records, the Board notes that where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The lack of review of the claims file does not render the examination inadequate. As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. General Rating Principles Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). While diseases of the digestive system, particularly within the abdomen, differ in the site of pathology, they 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 38 C.F.R. § 4.14. See also 38 C.F.R. § 4.113 (2010). The Veteran's hiatal hernia is rated under Diagnostic Code 7346 for hiatal hernia. Based on the Veteran's predominant symptoms and disability in the evidence discussed, Diagnostic Code 7346 is the most appropriate code and reflects the dominant disability picture of the Veteran Diagnostic Code 7346 rates on the basis of symptoms 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 warrants a 60 percent disability rating. Persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health warrants a 30 percent disability rating. A hiatal hernia with two or more of the symptoms for the 30 percent evaluation of less severity warrants a 10 percent disability rating. The Veteran first sought treatment from VA in April 2007, where it was noted the Veteran had been diagnosed with GERD and a hiatal hernia after an EGD in 2002. She had been prescribed medication that was noted to work well to control symptoms. The Veteran also had a diagnosis of irritable bowel syndrome. The Board notes that the Veteran is not service connected for irritable bowel syndrome. The examination did not reveal any abnormalities. In a March 2008 VA examination, the Veteran reported that in addition to her hiatal hernia diagnosis, the Veteran had been diagnosed with irritable bowel syndrome. She also stated that in prior evaluation for her hiatal hernia, there was no determination as to a particular time day or night that the symptoms would occur. She still took the same medication which provided good relief. If she missed the medication, she experienced continuous burning sensation from sour liquid reflux and nausea. She did not have any dysphagia with solids or liquids. She also had no epigastric pain as long as she took the medication, but, as noted, if she stopped, she experienced esophageal burning. There was no nausea or vomiting. The hiatal hernia had no effect with activities of daily living, although the Veteran noted that there was some symptomatology upon exercise even with the medication. The Veteran weighed 145 pounds. The diagnosis was acid reflux and hiatal hernia with good control with medication. In March 2008, her medical providers at VA noted that her GERD was stable and the medication worked great. She had no symptoms such as melena and there were no significant findings on examination. She did report occasional constipation. In September 2008, the Veteran weighed 138 pounds. In March 2009, the Veteran weighed 132 pounds and her GERD was described as stable. Her care providers noted that the medication she used seemed to work well. She had occasional constipation. In her notice of disagreement, the Veteran acknowledged that she took medication but there were days when the reflux and bloating were significantly bad. Therefore, the symptoms were not completely controlled with medication. The Veteran has also stated besides frequent bloating (without describing the numerical frequency), for the 6 prior months, she experienced regular constipation. Further, certain foods troubled her regularly even on medication resulting in a burning sensation in her throat and regurgitation. She has had several episodes where her stomach ballooned out and was hard with unbearable discomfort. As noted above, the criteria for a compensable rating require two or more of the symptoms for a 30 percent evaluation, but of less severity. Thus, the Veteran must show persistent epigastric distress, dysphagia (difficulty swallowing), pyrosis (burning sensation), and regurgitation accompanied by substernal or arm or shoulder pain, which is productive of considerable impairment of health. After a review of the evidence, the Board finds that the Veteran is entitled to a 10 percent rating for hiatal hernia, but no higher. The evidence above supports two of the symptoms from the schedular criteria: pyrosis (burning sensation) and regurgitation (acid reflux). The Veteran reported what the medical records termed as acid reflux or sour liquid reflux, an esophageal burning and nausea if she did not take her medication. When she did, her symptoms were well controlled even if, as she reports, the symptoms were not perfectly controlled and she has occasionally experienced symptoms even with medication. The Board therefore finds that although she had symptoms of pyrosis and regurgitation, they are of a lesser severity then that contemplated by the 30 percent rating. The Veteran reported no weight loss, chest pain, vomiting, melena, or other gastrointestinal symptoms with the exception of bloating, abdominal distention, and constipation. Even then, she did not report the frequency, duration, or intensity of such symptoms or the symptoms mentioned in the rating criteria. She did not report, and the record does not otherwise reflect, that she experienced dysphagia, or substernal, arm or shoulder pain or any symptom otherwise productive of considerable impairment of health. There is no other evidence of considerable impairment of health as evidenced by fairly stable weight ranging from 145 to 132 pounds and no treatment other than medication. For a rating higher than the current 10 percent rating, under DC 7346, 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. The evidence in this instance does not support such a finding, nor does the disability picture more nearly approximate the schedular criteria for a 30 percent rating. The Board recognizes that the evidence supporting the Veteran's claim for a higher rating for hiatal hernia includes her statements regarding the severity of her hiatal hernia, particularly constipation and bloating, but also by her contention that her medications do not fully control her symptoms. Whether the symptoms of hiatal hernia are fully controlled by medication or not is not part of the rating criteria. The Board has also considered the Veteran's lay statements that her disability of a hiatal hernia worse than currently evaluated due to bloating and constipation. In evaluating a claim for an increased schedular disability rating, however, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). The Board is not free to ignore VA's duly promulgated regulations, which include the Rating Schedule. Franklin v. Brown, 5 Vet. App. 190, 193 (1993). The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Furthermore, in rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). She is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. That involves specialized knowledge or training in identifying injuries and diseases of the gastrointestinal system. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. No factual foundation has been established that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical diagnosis. Such competent evidence concerning the nature and extent of the Veteran's hiatal hernia disability have been provided by the VA examiner and the medical personnel who have examined her during the current appeal period and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology. The Veteran reported that a VA physician has told her that her symptoms of constipation and bloating are related to her hiatal hernia, and the Veteran is competent to state what physicians have told her, see Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). However, no competent evidence of record relates any bloating, distended stomach, or constipation to the Veteran's hiatal hernia. Instead, the treatment notes suggest that these symptoms, especially constipation, were considered in evaluating her diagnosis of irritable bowel syndrome. Episodes of abdominal distress and constipation are signs of irritable colon syndrome. See 38 C.F.R. § 4.114, diagnostic code 7318. Thus, not only are these symptoms not part of the rating criteria for hiatal hernia, absent a competent medical opinion linking them to her hiatal hernia, the Board finds that these symptoms are not indicative of increased symptomatology warranting a higher rating. Based upon the evidence of record, the Veteran's hiatal hernia is manifested by epigastric distress with nausea, regurgitation, and heartburn, which supports a 10 percent rating, but there is no evidence of considerable impairment of health, as required for a 30 percent rating and as a 10 percent evaluation reflects the actual degree of impairment shown since the date the Veteran filed her claim for hiatal hernia, there is no basis for staged ratings for this claim. Furthermore, the Board has considered the application of other diagnostic codes in order to afford the Veteran a higher rating, but under 38 C.F.R. § 4.114 , a single rating will be assigned under the diagnostic code that reflects the predominant disability picture, and the predominant disability picture is best rated by the criteria for a hiatal hernia. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim for a rating higher than 10 percent, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002). Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe a disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service- connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). In this case there are no exceptional or unusual factors with regard to the Veteran's disability. In this regard, the Board notes that the Veteran has not had frequent periods of hospitalization nor has she reported marked interference with employment. In this case, the Veteran reported heartburn, acid reflux, nausea, and even considering occasional bloating and constipation, all of which were controlled on medication. As seen in the analysis above, the Board has considered these aspects of the Veteran's disabilities, and finds that the rating schedule (Diagnostic Codes 7346) adequately provides for ratings based on these symptoms or impairments. The Veteran also does not offer any explanation or argument to explain how the ratings assigned are inadequate to describe the hiatal hernia symptoms and their effect upon her daily life. The evidence before the Board also does not establish any functional impairment that would not be covered or contemplated by the current rating or to refer the case for her hiatal hernia for an extraschedular rating. In short, her disability picture is contemplated by the rating schedule under Diagnostic Code 8539 and the application of 38 C.F.R. §§ 4.120, 4.123, 4.124, and the assigned schedular evaluation is, therefore, adequate. Consequently, referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service, under 38 C.F.R. § 3.321 is not warranted. As the rating schedule is adequate to rate the Veteran's hiatal hernia, referral for extraschedular consideration is not warranted. Total Disability Rating for Compensation Based on Individual Unemployability During the appeal period, the Veteran has not expressly raised and the record does not reasonably raise a claim for total disability rating for compensation based on individual unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase). The record reflects that Veteran is employed. Therefore, in the circumstances of this case, the Board declines to take jurisdiction over a total disability rating claim. ORDER Entitlement to a 10 percent rating, but no greater, for hiatal hernia is granted, subject to the applicable regulations concerning the payment of monetary benefits. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs