Citation Nr: 1343396	
Decision Date: 12/31/13    Archive Date: 01/07/14

DOCKET NO.  11-10 045	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to an initial rating greater than 10 percent for hiatal hernia.


REPRESENTATION

Appellant represented by:	Virginia Department of Veterans Services


ATTORNEY FOR THE BOARD

S. M. Marcus, Counsel







INTRODUCTION

The Veteran served on active duty from May 1989 to May 2009.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina as part of the Benefits Delivery at Discharge (BDD) program.

The purpose of the BDD program is to help ensure a smooth transition from military to civilian status by allowing service members to file pre-discharge claims for disability compensation with VA.  In order to facilitate the quick processing of claims under the BDD program, the Virtual VA paperless claims processing system is utilized.  Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process.  The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits.  

Because the current appeal was processed as part of the Virtual VA system, any future consideration of this appellant's case should take into consideration the existence of this electronic record. 


FINDING OF FACT

The Veteran's hiatal hernia is manifested by daily heartburn, but is otherwise controlled by medication.


CONCLUSION OF LAW

The criteria for an initial rating greater than 10 percent for hiatal hernia have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7346 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Notice and Assistance

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

In cases such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical 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 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements.  Goodwin v. Peake, 22 Vet. App. 128 (2008).  There has been no allegation of such error in this case.  

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records and VA medical records are in the file.  The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims.  

The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran.  Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a).

The Veteran was provided a pre-discharge examination in March 2009 and a post-service VA examination in January 2011.  These examinations are adequate because they are based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder and appropriate diagnostic tests, to include an April 2009 upper GI series.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).  There are no records suggesting an increase in disability has occurred since the January 2011 VA examination and, thus the Board concludes the examinations in this case are adequate upon which to base a decision.

Thus, the Board finds that VA has satisfied the duty to assist the Veteran and may proceed to consider the merits of the claim.
  
Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity.  38 U.S.C.A. § 1155 (West 2002).  Requests for increased disability ratings require consideration of the medical evidence of record compared to the criteria in the VA Schedule for Rating Disabilities.  If the evidence for and against a claim is in equipoise, the claim will be granted.  A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Evidence to be considered in the appeal of an initial disability rating is not limited to that reflecting the current severity of the disorder.  In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the initial evaluation period.  Fenderson v. West, 12 Vet. App. 119 (1999).   Here, staged ratings are inapplicable because the Veteran's hiatal hernia has been manifested by consistently described symptoms throughout the appellate time frame.

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 required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2013).  

Ratings under Diagnostic Codes (DCs) 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other.  A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.  38 C.F.R. § 4.114 (2013).

The Veteran's hiatal hernia is currently rated under Diagnostic Code 7346.  See 38 C.F.R. § 4.114, DC 7346.  Under DC 7346, a 10 percent rating is awarded where two or more of the symptoms for the 30 percent evaluation are present at less severity.  A 30 percent rating is warranted where there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  Id.  A 60 percent rating, the highest possible rating under DC 7346, is awarded for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.  Id.

VA regulations provide that, for purposes of evaluating conditions in 38 C.F.R. § 4.114, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer.  The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy.  "Baseline weight" means the average weight for the two-year-period preceding onset of the disease.  38 C.F.R. § 4.112 (2013).

The Veteran claims his hiatal hernia is worse than currently rated.  He initially claimed entitlement to service connection for gastroesophageal reflux disorder (GERD).  He had complained of reflux while still on active duty.

Prior to discharge from the military, the Veteran was afforded an examination in March 2009 where the Veteran complained of nausea and heartburn with flare-ups two to three times per month.  At that time, the Veteran weighed 220 pounds, was not receiving any treatment, and had never been hospitalized or undergone any surgery for his complained reflux.  The examiner found the Veteran's condition did not affect his body health or body weight and did not cause functional impairment.  An upper GI series was completed in April 2009 where no significant reflux was observed, but a small sliding hiatal hernia was diagnosed.  No other function or anatomic abnormality was noted.

After service, the Veteran was afforded a VA examination in January 2011.  At that time, the Veteran weighed 215 pounds and reported treatment with medication with good results and a greatly improved condition.  He denied vomiting, nausea, dysphagia, edophageal distress, or any other significant symptoms.  Rather, he complained of daily heartburn, occurring several times per day.  On examination, the Veteran did not have esophageal dilation, and no signs of anemia, regurgitation, hematemesis, or melena.  The Veteran indicated he worked as a drug and alcohol counselor full time and had never missed a day due to his hiatal hernia.

In short, the medical evidence indicates the Veteran has a small sliding hiatal hernia without observed reflux causing frequent heartburn, but otherwise well controlled on medication.  There is no objective evidence of on-going problems with vomiting, nausea, diarrhea, constipation, anemia or weight change.  Indeed, there is medical evidence to the contrary.  In his December 2010 notice of disagreement, the Veteran indicated that the disability was more severe than rated, but he did not point to any specific manifestations.  Thus, the evidence does not support a rating greater than 10 percent at any point since the award of service connection.  The Veteran's complaints of heartburn are already contemplated in the current 10 percent rating assigned and the criteria for a higher initial rating have not been met.

The Board considered the applicability of alternative diagnostic codes related to the digestive system.

As explained above, with regard to diseases of the digestive system, particularly within the abdomen, a single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.  38 C.F.R. § 4.114.

In this case, the evidence as a whole indicates the Veteran's principal complaint with regard to his hiatal hernia has been heartburn.  Other diagnostic codes pertinent to the digestive system provide for a rating greater than 10 percent, but only for findings of moderately severe attacks of abdominal pain (DC 7347), recurrent ulcers (DC 7348), or other unrelated symptomatology.  

In short, based on the medical evidence and the Veteran's contentions, the Board finds no provision in which to assign the Veteran an initial rating greater than 10 percent for his hiatal hernia.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 56. 

Extraschedular Considerations

In considering the claims for higher ratings, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis.  See Barringer v. Peake, 22 Vet. App. 242 (2008).  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

Here, the record does not establish that the rating criteria are inadequate for rating his hiatal hernia.  A comparison between the level of severity and symptomatology (daily heartburn) of the Veteran's hiatal hernia with the relevant established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability and symptomatology.  The effect of the Veteran's disability has been fully considered and is contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time.  See Thun v. Peake, 22 Vet. App. 111 (2008).

Total Rating for Compensation Based on Individual Unemployability (TDIU)

TDIU is an element of all appeals of an initial rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  TDIU is granted where a Veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him.  38 C.F.R. § 4.16 (2013).

Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU).  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  The United States Court of Appeals for the Federal Circuit has held that TDIU is not raised in an increased rating claim unless the Roberson requirements are met.  Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009).  In this case, there is no evidence of unemployability.  The Veteran has reportedly been employed throughout the appeal period and, indeed, told the January 2011 VA examiner he has never missed a day of work due to his hiatal hernia.  Hence further consideration of TDIU is not warranted. 


As shown above, and as required by Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991), the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran.


ORDER

Entitlement to an initial rating greater than 10 percent for hiatal hernia is denied.



____________________________________________
RYAN T. KESSEL
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs