Citation Nr: 1343007	
Decision Date: 12/27/13    Archive Date: 01/07/14

DOCKET NO.  11-04 081	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Portland, Oregon


THE ISSUES

1. Entitlement to service connection for Adie's tonic pupil of the right eye, secondary to the service-connected Adie's tonic pupil of the left eye.

2. Entitlement to a compensable rating for Adie's tonic pupil of the left eye.

3. Entitlement to a compensable rating for hiatal hernia with gastroesophageal reflux.


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

G. Jackson, Counsel


INTRODUCTION

The Veteran had active service from November 1968 to June 1995.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2008, January 2009 and March 2009 rating decisions issued by the RO. In those rating decisions, the RO denied the Veteran's claims of entitlement to compensable ratings for his Adie's tonic pupil of the left eye and hiatal hernia with gastroesophageal reflux and denied the claim of entitlement to service connection for Adie's tonic pupil of the right eye, secondary to the service-connected Adie's tonic pupil of the left eye. 

The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a hearing at the RO in March 2013; a transcript of the hearing is associated with the claims file.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal herein decided. 

The issue of entitlement to a compensable rating for the service-connected Adie's tonic pupil of the eyes 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.


FINDINGS OF FACT

1. Adie's tonic pupil of the right eye is a subsequent manifestation of a service connected chronic disease. 

2. Dysphagia, reflux and nausea are the symptoms associated with the Veteran's hiatal hernia with gastroesophageal reflux. Persistently recurrent epigastric distress with pyrosis and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health is not demonstrated.


CONCLUSIONS OF LAW

1. Adie's tonic pupil of the right eye is a subsequent manifestation of the underlying chronic disease process producing Adie's tonic pupil of the left eye incurred in service.  38 U.S.C.A. §§ 1101, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).

2. The criteria for a 10 percent rating for the hiatal hernia with gastroesophageal reflux are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.113, 4.114, Diagnostic Code (DC) 7346 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013).

Given the action taken hereinbelow is favorable to the Veteran with regard to his claim for service connection for Adie's tonic pupil of the right eye, the Board finds that further discussion of VCAA is not required with regard to that issue at this time.

As to the issue of entitlement to compensable rating for the hiatal hernia, the Board notes that the notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2013). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121.

In this case, in a February 2008 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for a compensable rating for his hiatal hernia with gastroesophageal reflux, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. However, the notice letter did not contain an explanation of the general rating criteria relevant to his hiatal hernia with gastroesophageal reflux.

The January 2011 Statement of the Case (SOC) set forth applicable criteria for ratings for hiatal hernia with gastroesophageal reflux. After issuance of the January 2011 SOC, and opportunity for the Veteran to respond, the September 2012 Supplemental SOC (SSOC) reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect).

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the VA treatment records and examination reports. 

The VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for VA examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Additionally, during the hearing at the RO, the undersigned VLJ clarified the issues on appeal, explained what factors were for consideration in the evaluation of hiatal hernia, identified an evidentiary deficit, and suggested the submission of additional evidence to support the Veteran's claim. The VLJ also left the record open for a period of 60 days following the hearing to allow for submission of any additional evidence. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing.


Adie's Tonic Pupil of the Right Eye

The Veteran asserts that his Adie's tonic pupil of the right eye results from the same etiology of the service-connected Adie's tonic pupil of the left eye.  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, 1131. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

The Veteran is service-connected for Adie's pupil of the left eye and subsequently developed Adie's pupil of the other eye.  In the July 2012 addendum to the May 2012 VA examination, the ophthalmologist, explained that the Adie's tonic pupil of the right eye happened after the Veteran's discharge and is an independent event, unrelated to the left eye. Nevertheless, the ophthalmologist noted that the cause of the Adie's tonic pupil of the right eye was most likely the same as the left eye. 

Given its review of the record, the Board finds that service connection for Adie's tonic pupil of the right eye is warranted. To that end, the Board notes that the underlying disease process producing Adie's tonic pupil is an organic disease of the nervous system.  See 38 C.F.R. § 3.303(b).  The record establishes that service connection is in effect for Adie tonic pupil of the left eye.  The regulation provides that subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. See 38 C.F.R. § 3.303(b). As noted, in the July 2012 addendum opinion, the ophthalmologist concluded that the cause of the Adie's tonic pupil of the right eye was most likely the same as the left eye. Therefore, intercurrent cause for Adie's tonic pupil of the right eye is not demonstrated and service connection for Adie's tonic pupil of the right eye is warranted.



Hiatal Hernia

Laws and Regulations

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be 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.

The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999).   Here the disability has not significantly changed and a uniform evaluation is warranted.

The rating for the Veteran's hiatal hernia with gastroesophageal reflux has been assigned pursuant to diagnostic code (DC) 7346. Under DC 7346, a 10 percent rating is assigned for hiatal hernia with two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent evaluation contemplates hiatal hernia manifested by 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 rating is assigned for hiatal hernia manifested by 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.

Analysis

In this case, the Board concludes that the symptoms of the Veteran's hiatal hernia with gastroesophageal reflux warrant a 10 percent evaluation.  
 
The March 2008 report of VA examination reflects the Veteran's complaint of "nervous stomach" and reflux symptoms of 30 year duration. He denied having burning acid in his throat. He was prescribed Ranitidine which provided relief. He denied any other problems. He did not wake up during the night due to stomach problems; his weight was stable; and, he did not have chest pain, dysphagia, pyrosis or regurgitation. H.pylori antibody was negative. 

The May 2012 report of VA examination documents the Veteran's report of history of his hiatal hernia with gastroesophageal reflux, including complaints of reflux symptoms since the late 1980's, recurrent, painful dysphagia and adverse side effects to prescribed medications ( Lansoprazole caused "deep bone pain" and was discontinued; Ranitidine made him feel "strange and stimulated"). He denied having typical heartburn symptoms and he did not have burning midline chest pain. He did experience the taste of acid reflux in his mouth but had no regurgitation of gastric food contents. He reported that he had a "nervous stomach" and complained that he experienced these symptoms only when upright (never when supine).

He had dysphagia for solid foods (described as a lump in his throat) and had to have water handy in order to swallow successfully. He did not have dysphagia for liquids unless he already had the lump sensation in his throat. On 4 occasions, he had severe episodes of dysphagia (described as complete "shutoff") that resulted in mucous streaming out of his mouth and nose before finally resolving. Additionally, he reported having occasional nausea if access to water was not readily available. Presently, he used Kefir for his reflux symptoms but was not prescribed any medications.

The examiner indicated that dysphagia, reflux and nausea were symptoms associated with the Veteran's hiatal hernia with gastroesophageal reflux. The Veteran did not experience epigastric distress, pyrosis, regurgitation substernal arm or shoulder pain, sleep disturbance caused by esophageal reflux, anemia, weight loss, vomiting, hematemesis or melena.

The Veteran did not have documented esophageal stricture, spasm of esophagus or an acquired diverticulum of the esophagus; however, the examiner concluded that the Veteran's symptoms could be indicative of such but would need to be demonstrated on manometry. Additionally, the examiner found that examination suggested that the Veteran had transient bronchospasm due to irritation from recurrent acid reflux with associated transient laryngospasm ("lump").

Here, there is evidence of reflux, dysphagia and nausea as documented above. The Board finds that the criteria have been met for assignment of a 10 percent rating for the hiatal hernia with gastroesophageal reflux. 38 C.F.R. § 4.7. In this regard, the Veteran's claim is granted.

As epigastric distress, pyrosis, regurgitation or substernal or arm or shoulder pain has not been demonstrated, a higher rating is not warranted. Additionally, esophageal stricture, spasm of esophagus or an acquired diverticulum of the esophagus are not demonstrated; thus, a higher rating under those diagnostic codes is not warranted. Further, the Veteran has not demonstrated any other disorder of the digestive system that would warrant assignment of a higher rating under the appropriate diagnostic code.

For all the foregoing reasons, the Board finds that a 10 percent, but no higher, rating for hiatal hernia with gastroesophageal reflux is warranted, but that a rating in excess of 10 percent is not warranted at any time pertinent to this appeal. The Board has applied the benefit-of-the-doubt doctrine in determining that the criteria for 10 percent rating is met, but finds that the preponderance of the evidence is against assignment of higher ratings.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56(1990).

The above determinations are based on application of pertinent provisions of VA's rating schedule.  Additionally, the Board finds that at no point has the hiatal hernia with gastroesophageal reflux been shown to be so exceptional or unusual as to warrant the assignment of any higher ratings on an extra-schedular basis.  See 38 C.F.R. § 3.321.

Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. 

The discussion above reflects that the symptoms and effects of the Veteran's hiatal hernia with gastroesophageal reflux are fully contemplated by the applicable rating criteria. The Board's analysis above reflects that the symptoms, effects, and overall disability picture from the Veteran's hiatal hernia with gastroesophageal reflux is contemplated by the noncompensable rating, which take account of both the individual symptoms and the overall impairment caused by the hiatal hernia with gastroesophageal reflux. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. In any event, the above evidence reflects that the effects of the hiatal hernia with gastroesophageal reflux on the Veteran's employment did not constitute marked interference with employment, i.e., beyond that contemplated by the assigned noncompensable rating. See 38 C.F.R. § 4.1 ("Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability"). Moreover, there is no evidence of frequent hospitalization, or indication that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. Therefore, referral for consideration of an extraschedular rating for hiatal hernia with gastroesophageal reflux is not warranted. 38 C.F.R. § 3.321(b)(1).


ORDER

Entitlement to service connection for Adie's tonic pupil of the right eye is granted.

A 10 percent rating is granted for hiatal hernia with gastroesophageal reflux, subject to controlling regulations governing the payment of monetary awards.


REMAND

In this case, the last VA eye/optometry treatment document of record is an August 2012 VA eye note. Following his March 2013 Board hearing the Veteran submitted a statement in April 2013 indicating that he received treatment at the VA on April 15, 2013 for his service-connected left eye disability and claimed right eye disorder. 

Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records. 38 C.F.R. § 3.159(c)(2). Remand is required to obtain this (and any other) outstanding VA record.

Further, in view of the Board's favorable determination regarding the Veteran's claim for entitlement to service connection for Adie's tonic pupil of the right eye, the RO should revaluate the Veteran's, now, bilateral eye disability.

Accordingly, these issues are REMANDED for the following action:

1. Contact the appropriate VA Medical Center and obtain and associate with the paper or virtual claims file all outstanding records of treatment from August 2012 to present, to specifically include record of treatment at the VA on April 15, 2013. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. In such case, notice must be provided to the appellant and his representative. The appellant should be informed that he can also provide alternative forms of evidence. 

2. Reevaluate the (now) bilateral eye disability. After completing all indicated development, the claims remaining on appeal should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response.

Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. 

The Veteran 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. 2013).



______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs