Citation Nr: 1336043 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 10-12 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hiatal hernia with Barrett's esophagus. 2. Entitlement to an evaluation in excess of 10 percent for residuals of a matrixectomy, left hallux (hereinafter 'left toe disorder'). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1975 to August 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal from April 2000 and August 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The April 2000 rating decision denied a compensable evaluation for a left toe disorder and the August 2008 rating decision denied entitlement to service connection for a hiatal hernia. The Veteran testified at a Board hearing at the RO in St. Petersburg, Florida in July 2012. This transcript has been associated with the file. During the pendency of the appeal, in an October 2003 rating decision, the RO assigned an increased evaluation of 10 percent effective April 8, 1999 for the Veteran's left toe disorder. With respect to increased ratings, the United States Court of Appeals for Veterans Claims (Court) has held that on a claim for an original or increased rating, the appellant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than the maximum benefit is allowed. See AB v. Brown, 6 Vet. App. 35, 38 (1993). This claim for an increased evaluation was previously brought before the Board in June 2003 at which time it was remanded to the Agency of Original Jurisdiction (AOJ) to further assist the Veteran with the development of his appeal. The case is once again before the Board. The Board notes that in the Veteran's original claim, he raised the issues of service connection for a hiatal hernia and lowered brows. A statement of the case on these claims was issued in January 2010. However, the Veteran clarified on his March 2010 appeal, VA Form 9, that he was only appealing the issue of entitlement to service connection for a hiatal hernia. As such, the only issue before the Board is listed above. The issue of entitlement to an increased evaluation for a left toe disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's hiatal hernia is related to his active military service. CONCLUSION OF LAW A hiatal hernia was incurred during active military service. 38 C.F.R. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) Since the Board is granting entitlement to service connection for a hiatal hernia, the entire benefit sought on appeal has been granted. Thus, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). At entrance to service in March 1974 the Veteran denied frequent indigestion, stomach, liver, or intestinal trouble. However, in a January 1981 treatment record he reported heartburn. A follow up appointment revealed Mylanta was giving him some relief. In his December 1984 Report of Medical History again he reported frequent indigestion. At his May 1985 Report of Medical History the Veteran reported frequent indigestion and stomach, liver, or intestinal trouble. No diagnosis was given. The VA treatment records reveal that post service the Veteran has consistently complained of gastroresophageal symptoms which vary in severity. He has also been diagnosed with Barrett's esophagus. The Veteran was afforded a VA examination in June 2008. He reported a history of pyrosis since 1981. The examiner noted a few complaints in service of pyrosis. The examiner did not relate this condition to service as the Veteran was not diagnosed with a hiatal hernia in service and there was no medical evidence of chronicity. The Veteran's treating physician of 11 years offered an opinion in October 2008 that although he had not reviewed service treatment records that may have documented abnormalities, the Veteran's hiatal hernia condition was at least as likely as not related to service. See also March 2010 VA Form 9. His rationale was that the length segment of the Veteran's Barrett's esophagus likely took several years to develop and progress to that extent. He also took into account the Veteran's statements that reflux began in service. The Board observes that the Veteran was not diagnosed with a hiatal hernia while he was in service, although he did report frequent indigestion and stomach, liver, or intestinal trouble. The Veteran also provided statements from his family who commented on his symptomatology. The Veteran's son submitted a statement in March 2010. He indicated that he had witnessed the Veteran have symptoms of indigestion, sleepless nights, heartburn, and reflux for over 20 years. He stated that the Veteran used over the counter medications to help with his symptoms. The Veteran's wife also submitted a statement in March 2010 attesting to the fact that she had been married to the Veteran for 32 years and was stationed with him during his entire military career. She stated that the Veteran complained of severe heartburn throughout his career and that he self treated with over the counter medications. She also stated the Veteran was seen by a German physician who recommended he change his diet. Although the Veteran changed his eating habits, his heartburn persisted and he incurred bouts of vomiting as well. In a January 2009 statement the Veteran revealed that he frequently woke up vomiting due to acid reflux. At his July 2012 Board hearing the Veteran also testified that he began having reflux problems in service around 1982 or 1983. He reported that he was seen by a private German physician who advised him to stop eating in the mess hall. He also testified that he self treated his symptoms with over the counter antacids and eventually prescription medication. While for VA adjudication purposes, a layperson generally is not capable of opining on matters requiring medical knowledge, lay testimony nonetheless is deemed competent evidence with regard to matters within the purview of direct observation and firsthand knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is considered competent to report on that of which he or she has personal knowledge). Lay evidence may have direct relevance to establishing underlying components of a claim for service connection. Lay testimony where found credible is also competent to establish the presence of continuity of symptomatology for a claimed disability during and since separation from military service. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also, Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The statements and testimony provided are from the Veteran, who experienced the symptoms, and his family, who witnessed him having hiatal hernia symptoms, including acid reflux and vomiting, both in service and after separation from service. The undersigned finds the Veteran and his family to be credible to report these symptoms. At the very least, the Board finds the evidence is in relative equipoise. The June 2008 VA examiner did not relate the Veteran's condition to service as there was not an in service diagnosis or continuity of symptomatology. However, he did not take into account the lay statements of the Veteran and his family. The October 2008 VA physician did relate the Veteran's condition to service based on his symptomatology, approximate time it would have taken for the Veteran's Barrett's esophagus to develop, and the Veteran's statements that he experienced reflux in service. The Veteran also provided testimony and statements from his family revealing the extent and duration of his hiatal hernia symptomatology. The Board finds that, resolving all reasonable doubt in favor of the Veteran, the criteria for a grant of service connection have been met. As such, the Veteran's claim of entitlement to service connection is granted. 38 U.S.C.A. § 5107 (West 2002). ORDER Entitlement to service connection for a hiatal hernia is granted. REMAND The Board remanded the issue of entitlement to a compensable evaluation for a left toe disorder in May 2003. In an October 2003 rating decision a 10 percent evaluation was awarded, as of April 8, 1999, for the Veteran's left toe disorder. The Veteran was never issued a supplemental statement of the case (SSOC) on the issue and since the previous January 2002 SSOC, additional evidence has been received without a waiver of RO jurisdiction. Accordingly, the case is REMANDED for the following action: The AOJ should readjudicate the Veteran's claim, taking into account all evidence received since the January 2002 SSOC. 38 C.F.R. § 19.37(a). If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs