Citation Nr: 1328182	
Decision Date: 09/04/13    Archive Date: 09/10/13

DOCKET NO.  06-30 622	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to service connection for hiatal hernia.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Nathaniel J. Doan, Counsel


INTRODUCTION

The Veteran served on active duty from September 1982 to August 1984, and from November 1986 to May 2005.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which, in pertinent part, denied service connection for hiatal hernia.  The Veteran perfected an appeal of this claim.

In July 2011, the Board remanded the issue of entitlement to service connection for hiatal hernia for additional development.  The additional issues on appeal at the time of this decision were adjudicated on the merits and are no longer in appellate status.  Upon return of the appeal of the issue of entitlement to service connection for hiatal hernia, in May 2013, the Board sought additional evidence by seeking a medical expert opinion from the Veterans Health Administration (VHA).  See 38 C.F.R. § 20.901 (2012).  The Board has now received the requested medical opinion, and as discussed below, finds that the evidence warrants entitlement to service connection for hiatal hernia.


FINDING OF FACT

The Veteran currently has an hiatal hernia that first developed in service.


CONCLUSION OF LAW

The criteria for entitlement for service connection for an hiatal hernia is warranted.  38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran asserts that he has an hiatal hernia that is related to service.  The Veteran filed for service connection for an hiatal hernia one month after separation from service.  As discussed below, the Board finds that the preponderance of the evidence indicates that the Veteran currently has an hiatal hernia that developed in service.  As the Veteran has an hiatal hernia that began in service, service connection is warranted.  Below, the Board focuses on the evidence that forms the basis of this grant of service connection.

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations, as set forth under the VCAA, have been satisfied.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  In this appeal, however, the Board grants service connection for an hiatal hernia.  Since this decision constitutes a complete grant of the appeal, the Veteran cannot be prejudiced by any possible defect in VA's VCAA obligations.  Therefore, the Board finds that a discussion of the VA's "duty to notify" and "duty to assist" obligations is unnecessary.  

II.  The Merits of the Claim

The Veteran seeks service connection for an hiatal hernia.  Service connection is currently in effect for gastroesophageal reflux disease (GERD), and one of the contentions on appeal is that the hiatal hernia is secondary to the service-connected GERD.

Service connection may be granted for disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110, 1131 (West 2002).  Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a) (2012).

Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. § 1113 (West 2002); 38 C.F.R. 3.303(d) (2012).  Service connection may also be granted on a secondary basis for a disability which is caused or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439, 447-49 (1995).

In the May 2013 VHA opinion request, the Board detailed the evidence then of record.  This evidence of record included service records showing treatment for various gastrointestinal complaints.  In addition, the claims file contained a November 2003 private treatment record documenting an hiatal hernia diagnosis; this private medical treatment was provided while the Veteran was in service.  Thus, there was evidence of an in-service disability.  

Prior denial of the claim was based on the finding that the Veteran did not currently have a hiatal hernia.  In this regard, in an August 2005 VA general medical examination, the clinician did not diagnosis an hiatal hernia.  In an
August 2007 VA gastrointestinal examination, the examiner again did not diagnose an hiatal hernia.  These examinations, instead, diagnosed GERD.  VA provided another examination in August 2009, and in contrast to the prior VA examinations, this examiner found an hiatal hernia, diagnosing GERD/hiatal hernia.  

Thus, prior to the May 2013 VHA request, the evidence of record was unclear as to whether the Veteran currently had an hiatal hernia disability.  See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The Board originally sought this opinion by directing that an additional VA examination be provided in which the examiner offered an opinion regarding the etiology of any diagnosed hiatal hernia.  As the Veteran did not appear for this examination, the Board sought the opinion by way of the May 2013 VHA opinion request.  

The Board received the requested VHA opinion in June 2013.  The medical doctor discussed the evidence of in-service diagnosis of hiatal hernia and GERD.  He discussed the relationship between the two diseases and noted that the prevalence of hiatal hernia increases with a person's age.  With this as background, he opined that as the Veteran developed GERD during service it was as likely as not that he developed the hiatal hernia during service.  Although the examiner also addressed the other questions posed in the VHA opinion request, the examiner's opinion regarding direct service connection supports the grant of service connection, and thus, further discussion is unnecessary.  

As the evidence indicates that the Veteran currently has an hiatal hernia and the only medical opinion of record supports the finding that the disability began while the Veteran was in service, the elements of service connection on a direct basis are satisfied.  Entitlement to service connection for a hiatal hernia is warranted.  See 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). Gilbert, 1 Vet. App. at 57.  As such, the appeal is granted.


ORDER

Entitlement to service connection for hiatal hernia is granted.



______________________________________________
K. A. KENNERLY
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs