Citation Nr: 1511835 Decision Date: 03/19/15 Archive Date: 04/01/15 DOCKET NO. 07-18 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a hiatal hernia. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran served on active duty from December 1988 to July 1992. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran is a VA employee at the Houston, Texas RO, so the Phoenix, Arizona RO has jurisdiction of the claims file. The Board Remanded the appeal in August 2014. The Veteran's claims file is wholly in electronic form. The Board has reviewed the Veteran's complete electronic (virtual VA and eFolder files on the VBMS system) file. The Veteran submitted an additional private medical record in January 2015. However, that record does not discuss the disability at issue in this appeal. The Board is not required to discuss the document in its adjudication of the claim addressed in this decision, and appellate review may proceed. FINDINGS OF FACT 1. A hiatal hernia was medically diagnosed in 2002, when about 10 years had elapsed after the Veteran's service discharge. 2. The Veteran has been granted service connection for gastritis. 3. Medical opinion establishes that symptoms of hiatal hernia and gastritis are similar. 4. The medical opinion establishes that it is less than likely that a hiatal hernia was incurred during or as a result of the Veteran's active service or is secondary to or aggravated by a service-connected disability or medication used to treat service-connected disability. CONCLUSION OF LAW The criteria for service connection for hiatal hernia, to include as secondary to or aggravated by service-connected disabilities, are not met. 38 U.S.C.A. §§ 1101, 1110, 1153 (West 2014); 38 C.F.R. §§ 3.303, 3.306, 3.309, 3.310 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that she is entitled to service connection for a current hiatal hernia. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease" in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). Unfortunately for the Veteran in this case, hiatal hernia is not defined as a chronic disease under 38 C.F.R. § 3.303(b). No further discussion of the applicability of presumptive service connection is required in this case. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. The Veteran contends that, if her current hiatal hernia was not incurred in or as a result of her service, it was caused or aggravated by a service-connected disability, or medications used to treat service-connected disabilities. Secondary service connection may also be established, under 38 C.F.R. § 3.310(a), for non-service-connected disability which is aggravated by service-connected disability. "Aggravation" is defined for this purpose as a chronic, permanent worsening of the underlying condition, beyond its natural progression, versus a temporary flare-up of symptoms. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. Facts and analysis The Veteran's August 1988 service induction examination discloses no gastrointestinal (GI) abnormality or complaint. The Veteran's service medical records reflect that she sought treatment in service on several occasions, for a variety of disorders and complaints. The Board is unable to recognize any notation that the Veteran reported stomach pain or bloating or other gastrointestinal symptom. The Veteran's July 1992 separation examination describes the Veteran's GI system (abdomen and viscera) as normal. Importantly, the Veteran denied "indigestion" or "stomach . . . or intestinal trouble" in the medical history she completed in July 1992, providing highly probative factual evidence against her own claim. The provider who completed the report of medical history noted five disorders or symptoms for which the Veteran had been treated in service, but this list does not reflect that the Veteran reported stomach or GI complaints or was treated for a stomach or GI disorder in service. In June 2002, the Veteran complained of feeling "bloated," and having upper abdominal pain. She also reported diarrhea and gas. Private clinical records reflect that the Veteran underwent upper GI evaluation in June 2002. A small sliding hiatal hernia, with associated nonocclusive Schatzki's rating, was identified. VA outpatient treatment notes dated in 2007 reflect that the Veteran had a history of hiatal hernia, with symptoms of gastroesophageal reflux disease (GERD). She was taking Protonix, and was non-symptomatic. In her June 2007 substantive appeal, the Veteran stated that she had intestinal problems and stomach problems in service. The Veteran acknowledged that diagnosis of a hiatal hernia was after her service and after any presumptive period had expired, but stated that, since hiatal hernia was her only intestinal diagnosis, she should be granted service connection. She requested additional VA examination and opinion. On VA examination conducted in 2012, the Veteran reported that epigastric pain began in 2008, leading to a diagnosis of gastritis with erosions due to nonsteroidal antiinflammatory medications (NSAIDS). However, the examiner did not discuss the Veteran's hiatal hernia. EGD performed in 2010 disclosed a hiatal hernia of more than 3 cm, as well as gastritis. Lengthy VA outpatient treatment records dated from 2009 through 2013 disclose no opinion as to the cause or onset date for hiatal hernia, other than the fact that this problem was indicated several years after service, providing some limited evidence against this claim. VA examination conducted in December 2013 discloses to that the Veteran reported vomiting, stomach pain, acid reflux, bloating, and difficulty sleeping. The Veteran reported that she first noted symptoms in 1989. The examiner concluded that the Veteran's service medical records support a finding that she was treated for gastritis in service, but the examiner concluded that those records did not document a hiatal hernia. The examiner further stated that it was not possible to determine whether a hiatal hernia was present while they Veteran was in service because there can be overlapping symptoms of these two conditions. The examiner opined that only an UGI series can confirm a hiatal hernia. In August 2014, the Board Remanded the claim for further medical development. The examiner who conducted December 2014 VA examination noted that the Veteran reported self-treatment of acid reflux and right shoulder pain with Pepto-Bismol beginning in 1989. The Veteran did not request medical evaluation of the symptoms until 2002, when UGI examination disclosed the hiatal hernia at that time. The Veteran was using medications to control GI symptoms, including Prilosec and TUMS. The Veteran reported an overall increase in symptoms of reflux and chronic right shoulder pain. The examiner noted that November 2010 UGI testing disclosed H[aemophilus] pylori, and a course of antibiotics was prescribed. EGD conducted in 2012 disclosed no H. pylori. The examiner concluded that the Veteran's subjective symptoms of reflux gastritis begin in about 1989, but a small hiatal hernia was not confirmed on diagnostic study until 2002. The examiner stated that reflux gastritis esophageal reflux and hiatal hernia symptoms overlap. The examiner concluded that the Veteran's GERD symptoms in service were attributable to use of NSAIDS in service, rather than to a hiatal hernia. The examiner further noted that it was not likely that the Veteran's hiatal hernia was caused or aggravated by service-connected gastritis because erosive gastritis is not a causative factor for developing a hiatal hernia. The examiner explained that the Veteran's hiatal hernia had improved, but the gastritis had become more severe. If the gastritis were causing the hiatal hernia, it would be expected that the hiatal hernia would increase in severity as the gastritis increased in severity. The examiner further noted that although erosive gastritis remained persistent, diagnostic studies in 2010 and 2012 did not confirm a hiatal hernia, providing more evidence against this claim. The December 2014 opinion establishes that the determination as to whether hiatal hernia is present when symptoms of reflux disease are noted is a complex medical question which cannot be resolved based on common knowledge or symptoms observable by a lay person. The December 2014 opinion of the health care provider persuades the Board that the Veteran is not competent to provide an opinion as to the complex medical issue raised in this case. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)(in addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The examiner who conducted the December 2014 VA examination assumed that the Veteran's report that she began taking Pepto-Bismol in service was accurate. The examiner concluded that the Veteran's lay actions likely signaled the onset of gastritis, but less than likely were related to a hiatal hernia. Given that the Veteran did not initiate medical treatment or evaluation for hiatal hernia until 2005, the examiner concluded that the Veteran's lay statements were consistent with onset of gastritis, but not a hiatal hernia, in-service. The December 2014 medical opinion addressed the probability that a hiatal hernia diagnosed in 2005 was caused or aggravated by the Veteran's gastritis, which was secondary to her use of NSAID S beginning in service. The conclusion that gastritis is not known to cause a hiatal hernia is unfavorable to the Veteran's claim similarly, the Veteran's scratch that examiner's conclusion that the fact that the Veteran's gastritis continues to increase in severity, while the hiatal hernia is not increasing in severity, is unfavorable to a finding that the Veteran's gastritis has permanently aggravated the hiatal hernia. The examiner has provided a rationale for each conclusion that appears well reasoned and consistent with medical literature and the facts of this case. The Veteran's statements are not competent to rebut this persuasive unfavorable opinion. Duties to notify and assist VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the present case, required notice was provided by letter dated in February 2005, soon after the Veteran submitted her January 2005 claim. An additional notice letter pertinent to the claim on appeal was issued in March 2006. Further information regarding the evidence required to substantiate the claim was provided to the Veteran by the Board's August 2014 Remand. The burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696, 1706 (2009). In this case, the Veteran has not alleged that she was prejudiced in any way by the timing or content of notice to her, and the record discloses no prejudice. As to VA's duty to assist, the Board finds that all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records were obtained. The Veteran has been afforded VA examinations, and medical opinions have been obtained. The Board's 2014 Remand explained what information was lacking in the prior VA opinion. The December 2014 VA opinion addressed the additional evidence required for adjudication. See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Board Notes that, after issuance of the December 2014 Supplemental Statement of the Case, the Veteran submitted a report of a December 2014 private EGD (esophagogastroduodenoscopy) with biopsy. That report notes diagnoses of severe atrophic gastritis and erosions in the stomach, but does not address whether a hiatal hernia is or is not present. The Veteran did not submit a waiver of her right to have this additional evidence reviewed by the RO. However, as the claim on appeal is not addressed in the additional evidence, appellate review of the claim on appeal may proceed. The Veteran has not identified any additional available evidence which might be relevant to her claim. Therefore, additional development efforts would serve no useful purpose. There is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The appeal for service connection for hiatal hernia is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs