Citation Nr: 1319312 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 10-03 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a right foot disorder. 2. Entitlement to an initial disability rating in excess of 10 percent for headaches. 3. Entitlement to an initial disability rating in excess of 10 percent for hiatal hernia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from February 1959 to April 1963. He had additional reserve service with the Army National Guard. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which granted entitlement to service connection for hiatal hernia and headaches and assigned initial 10 percent ratings for those disabilities, and denied service connection for a right foot injury. The Veteran requested a hearing before the Board in his January 2010 VA Form 9. He subsequently withdrew that request. The Board remanded the claims in April 2012 for additional development. They have been returned for appellate review. The Board also remanded claims for service connection for bilateral hearing loss and tinnitus in April 2012. Service connection for both disorders was subsequently granted in an April 2013 rating decision. Those issues are no longer before the Board for appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A current diagnosis of a right foot disorder is not of record. 2. The Veteran's headaches have not been manifested by characteristic prostrating attacks occurring on an average once a month over last several months at any time during the appellate period. 3. Prior to March 14, 2013, the Veteran's hiatal hernia was not manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal arm or shoulder pain, productive of considerable impairment of health. 4. As of March 14, 2003, there is no evidence the Veteran's hiatal hernia causes hematemesis and/or melena or other symptom combinations productive of severe impairment of health. CONCLUSIONS OF LAW 1. The criteria for service connection for a right foot disorder have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for an initial rating in excess of 10 percent for headaches have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). 3. The criteria for an initial rating in excess of 10 percent for hiatal hernia have not been met prior to March 14, 2013. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 4.114, Diagnostic Code 7346 (2012). 4. The criteria for a 30 percent rating, and no higher, for hiatal hernia have been met as of March 14, 2013. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7346 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence necessary to substantiate the claim and the division of responsibilities in obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Pre-adjudicatory notice related to the claim for service connection was provided to the Veteran in a March 2009 letter. Accordingly, the duty to notify has been fulfilled. As for the claims for increased ratings, the Veteran is disagreeing with the rating assigned after service connection has been granted and an initial disability rating and effective date have been assigned. Thus the service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This duty has also been met, as the Veteran's service and VA treatment records have been associated with the claims folder, and several VA examinations have been conducted in conjunction with the claims for increased ratings. VA also substantially complied with the Board's April 2012 remand when it obtained the Veteran's National Guard records, additional VA treatment records, and records from the Social Security Administration (SSA); requested that the Veteran provide authorization for the release of any private treatment records; and scheduled appropriate VA examinations. See April 2012 letters; see also D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board acknowledges that VA did not make additional attempts to locate the Veteran's complete active duty service records or make a formal finding as to their unavailability, as it instructed in April 2012. As will be discussed below, however, the Board has determined that the Veteran's account of an in-service injury to his right foot is both competent and credible as it relates to the claim for service connection for a right foot disorder. Therefore, there is no need to remand for additional efforts to obtain any outstanding service treatment records. The Board also acknowledges that the Veteran was not afforded a VA examination in connection with the claim for service connection for a right foot disorder. Remand for an examination is not warranted in the absence of any lay or medical evidence of a current disability. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Based on the foregoing, all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The record does not suggest the existence of additional, pertinent evidence that has not been obtained. For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the Veteran. Service connection Service connection may be established for disability resulting from personal injury incurred in or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran seeks service connection for a right foot disorder, which he contends has been present since service in Korea as a result of a fuel injector pump sliding out of his hands and falling on top of his right foot. He asserts that he was not able to have it examined for a long period of time due to his duty and that a dispensary doctor told him after examining his foot that there were no broken bones but that it might hurt for a long period of time. Service personnel records corroborate that the Veteran had service in Korea from September 1961 to March 1963. The available service treatment records are devoid of reference to complaint of, or treatment for, a right foot injury. As noted above, however, VA did not make additional attempts to locate the Veteran's complete active duty service records or make a formal finding as to their unavailability, as the Board instructed in its April 2012 remand. Given the foregoing, and for the purpose of this claim only, the Board finds that the Veteran's statements are competent and credible evidence of an in-service right foot injury. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran has not specifically identified a current right foot disorder, nor has he described any symptoms of the claimed right foot disorder. He has merely reported that he has had a right foot disorder since the in-service injury. In the absence of any specific symptomatology or disorder identified by the Veteran, there is no competent evidence of a current disability. In addition to the foregoing, the Board does not find the Veteran's assertions of a right foot disorder since the in-service injury to be credible. This is so because the Veteran consistently denied foot trouble during post-active duty National Guard examinations. See reports of medical history dated March 1972 and January 1974. Moreover, the post-service medical evidence of record, to include a substantial amount of evidence obtained from the SSA, is devoid of reference to complaint of, or treatment for, any right foot problems. The preponderance of the evidence of record is against the claim for service connection for a right foot disorder. A current disability is the cornerstone of a claim for VA disability compensation and in the absence of proof of a present disability, there can be no valid claim. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Without evidence of a current right foot disability, service connection for a right foot disorder is not warranted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part and remanded on other grounds sub nom., Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (noting that there must be a diagnosis of an underlying disability to establish a claim for service connection). As the preponderance of the evidence is against the claim of entitlement to service connection for a right foot disorder, the statutory provisions regarding resolution of reasonable doubt are not applicable. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased ratings Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. See generally 38 C.F.R. §§ 4.1, 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are not warranted in regards to the claim for an initial rating in excess of 10 percent for headaches. They are for the service-connected hiatal hernia, as will be discussed below. Service connection for hiatal hernia and headaches was established in the April 2009 rating decision that is the subject of the current appeal. A 10 percent rating was assigned for hiatal hernia pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7346, and a 10 percent rating for headaches was assigned pursuant to 38 C.F.R. 4.124a, Diagnostic Code 8100, both effective December 19, 2008. The Veteran seeks ratings in excess of 10 percent, but has not provided any specific argument as to why an increase is warranted beyond his assertion that his conditions are worse than currently rated. Diagnostic Code 7346 provides a 60 percent rating for 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. A 30 percent rating is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health; and a 10 percent rating for two or more of the symptoms for the 30 percent evaluation of less severity. Diagnostic Code 8100 provides the criteria for migraine headaches. A 10 percent rating is provided for headaches with characteristic prostrating attacks averaging one in 2 months over last several months; a 30 percent rating is provided for headaches with characteristic prostrating attacks occurring on an average once a month over last several months; and a 50 percent rating is provided for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define "prostrating," and neither has the Court of Appeals for Veterans' Claims. By way of reference, the Board notes that "prostration" is defined as "utter physical exhaustion or helplessness" in Webster's New World Dictionary of American English, Third College Edition (1986), see p. 1080, and as "extreme exhaustion or powerlessness" in Dorland's Illustrated Medical Dictionary. See 1367 (28th Ed. 1994). The evidence in this case consists of VA treatment records, VA examination reports conducted in February 2009 and March 2013 to evaluate the hiatal hernia and headaches, and records from the SSA. The Board notes that the SSA records pre-date the relevant timeframe for determining whether ratings in excess of 10 percent are warranted for hiatal hernia and/or headaches. The Board also notes that the Veteran did not identify any private treatment for either service-connected condition, although he was asked to do so on several occasions. See letters dated December 2008 and April 2012. The Veteran underwent a VA stomach, duodenum and peritoneal adhesions examination in February 2009, at which time his claims folder and medical records were reviewed. In pertinent part, he reported that if he did not take his medication, his stomach became upset, and that he had had a constant, gnawing, burning pain in the center of his stomach for years, which nothing relieved. Physical examination revealed abdominal tenderness, but there were no signs of significant weight loss or malnutrition and no signs of anemia. The examiner reported that imaging of the Veteran's upper gastrointestinal tract revealed a medium to large fixed hiatal hernia. The diagnosis following examination was hiatal hernia. The Veteran underwent a VA miscellaneous neurological disorders examination in February 2009, at which time his claims folder and medical records were reviewed. In pertinent part, he reported having about three headaches per week, which were located on the top of his head towards the back. The Veteran indicated that the headaches produced a dull pain that lasted approximately five to ten minutes. The headaches came on at any time and did not seem related any one thing. The Veteran reported that since losing the hearing in his left ear, the headaches were not quite as bad as they used to be. He denied nausea, dizziness, photophobia, or other associated symptoms. The examiner reported that a computed tomography (CT) scan of the Veteran's brain revealed no mass, changes of acute infarct, or subdural. The diagnosis following examination was cluster headaches. VA treatment records reveal that the Veteran presented as a new patient in May 2009. He reported headaches and heartburn, but denied frequent heartburn, nausea and dysphagia. The assessment was hiatal hernia. See primary care note. In an addendum, it was noted that the Veteran complained of headaches for a long time but that CT scan of the head done a long time ago was negative. A May 2009 ambulatory/outpatient care note reveals that the Veteran reported stomach pain and that current treatment in the form of Zantac and Nexium had not been very effective. The Veteran was seen in the VA emergency room in August 2009 with complaint of stomach pain. He reported a 50 year history of pain and stated that the last spell flared up six days prior after eating two scrambled eggs and some toast. The Veteran reported that he would go days to weeks without things feeling settled down, then after eating, it will feel like acid is building up. He indicated that he had been awoken after an hour of sleep the Sunday before with belching and diarrhea for five hours. He had not been eating much that week and had been supplementing his diet with Ensure. The Veteran denied fevers, chills, dysphagia and heartburn. Physical examination of his abdomen revealed that it was soft and tender to palpation, had no organomegaly, had normal bowel sounds, and had tenderness in the epigastrium and right upper quadrant. The assessment was epigastric and right upper quadrant abdominal pain, hiatal hernia, and history of esophagitis/gastritis. The Veteran underwent a headaches Disability Benefits Questionnaire (DBQ) in March 2013. The examiner indicated that the Veteran had migraine headaches, including migraine variants. Symptoms included pulsating or throbbing head pain and pain on both sides of the head. The Veteran also had sensitivity to light and sound. The duration of typical head pain was noted to be less than one day. The frequency, on average, of prostrating attacks over the last several months was less than once every two months. The Veteran did not have very frequent prostrating and prolonged attacks of migraine and/or non-migraine headache pain. The examiner reported that the February 2009 VA examination had been reviewed and that headaches were a chronic and recurrent condition that does not get better with proper treatment. The examiner indicated that it was not possible to assess the severity of the Veteran's headaches since February 2009 since he is not the primary care physician and had not been following the Veteran in regular and routine intervals, but that per the history and examination on that day, the Veteran's headaches were mild to moderate in severity. The Veteran underwent an esophageal conditions DBQ in March 2013. The examiner indicated that the Veteran had hiatal hernia and was taking continuous medication for the condition. The following symptoms were noted: persistently recurrent and infrequent episodes of epigastric distress; dysphagia; pyrosis; regurgitation; substernal arm or shoulder pain; and sleep disturbance four or more times per year. The examiner also noted recurrent nausea four or more times per year, recurrent vomiting four or more times per year of average duration less than one day, and epigastric tenderness. The examiner reported the findings of the February 2009 gastrointestinal radiographic studies and specifically noted that the Veteran denied hematemesis and melena. The examiner also reported reviewing the February 2009 VA examination and the August 2009 emergency room visit, at which time the Veteran had stomach pain, acid build up, belching and diarrhea. The examiner noted that hiatal hernia is a chronic and recurrent condition that does not get better with proper treatment or even with surgery. The examiner indicated that it was not possible to assess the severity of the Veteran's hiatal hernia since February 2009 since he is not the primary care physician and had not been following the Veteran in regular and routine intervals, but that per the history and examination on that day, the Veteran's condition was moderately severe. The preponderance of the evidence of record does not support the assignment of an initial rating in excess of 10 percent for headaches. The Veteran has not reported headaches with characteristic prostrating attacks occurring on an average once a month over last several months. Rather, at the time of the February 2009 VA examination, he reported having about three headaches per week that produced a dull pain lasting approximately five to ten minutes, but no nausea, dizziness, photophobia, or other associated symptoms. During the March 2013 VA examination, the average frequency of prostrating attacks over the last several months was reported as less than once every two months. These findings do not more nearly approximate the assignment of 30 percent rating during the period in question. In sum, the preponderance of the evidence supports the 10 percent disability rating assigned for headaches. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance of the evidence of record also does not support the assignment of an initial rating in excess of 10 percent for hiatal hernia prior to March 14, 2013. Although at the time of the February 2009 VA examination the Veteran reported a constant, gnawing, burning pain in the center of his stomach for years, which nothing relieved, and there was objective evidence of abdominal tenderness, there were no signs of weight loss, malnutrition, or anemia. Moreover, although the Veteran reported belching and diarrhea at the time of his August 2009 emergency room visit, he denied dysphagia and heartburn. He also did not report any pyrosis, regurgitation, or substernal arm or shoulder pain at any time prior to March 14, 2013. In sum, the preponderance of the evidence dated prior to March 14, 2013, supports the currently-assigned 10 percent disability rating for hiatal hernia. The evidence dated as of March 14, 2013, supports the assignment of a 30 percent rating, as the symptoms associated with the Veteran's hiatal hernia noted at the time of the esophageal conditions DBQ included persistently recurrent epigastric distress; dysphagia; pyrosis; regurgitation; and substernal arm or shoulder pain. A rating in excess of 30 percent is not warranted as the Veteran specifically denied hematemesis or melena, and there is also no evidence to support a finding of other symptom combinations productive of severe impairment of health. Extraschedular consideration The rating schedule represents, as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2012). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms exhibited by the Veteran's headaches and hiatal hernia are contemplated by the rating criteria (i.e., 38 C.F.R. § 4.114, Diagnostic Code 7346; 38 C.F.R. § 4.124a, Diagnostic Code 8100), which reasonably describe the Veteran's disabilities. Therefore, referral for consideration of an extraschedular rating is not warranted for either claim. See Thun v. Peake, 22 Vet. App. 111 (2008). Inferred claim for TDIU The Board has considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Board acknowledges that the Veteran has not worked throughout the appellate period. The Veteran has never asserted that he is unemployable. In addition, the evidence of record from SSA indicates that he is in receipt of disability benefits as a result of non-service connected lumbar spine problems. Given the foregoing, and in the absence of any evidence suggestive of unemployability due to any of the Veteran's service-connected disabilities, the Board finds Rice is inapplicable. See also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER Service connection for a right foot disorder is denied. An initial rating in excess of 10 percent for headaches is denied. An initial rating in excess of 10 percent for hiatal hernia is denied prior to March 14, 2013. A 30 percent rating, and no higher, is granted for hiatal hernia as of March 14, 2013. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs