Citation Nr: 1643446 Decision Date: 11/15/16 Archive Date: 12/01/16 DOCKET NO. 12-33 405A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a rating in excess of 10 percent for the service-connected hiatal hernia with associated gastroesophageal reflux disorder (GERD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran had active service from April 1970 to March 1972. The current matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in Atlanta. A transcript of that hearing is of record. In February 2016, the Board remanded the issue for further development By way of history, in a rating decision in October 2005, the RO increased the Veteran's rating for hiatal hernia to 10 percent effective July 18, 2005, the date the Veteran's claim for an increased rating was received. In November 2010, he requested that the severity of his condition be reconsidered. In a letter in January 2006, VA advised the Veteran that there were no provisions to reconsider the prior decision, unless the decision contained clear and unmistakable error or additional evidence was received. The RO provided the Veteran with VA Form 4107 which advised him of his right to appeal the decision. In a statement in February 2006, the Veteran stated that he wanted to appeal the RO's decision. Thus, the Board construes the February 2006 statement as the Veteran's notice of disagreement (NOD) with the October 2005 rating decision, noting that the current VA regulation requiring the filing of a VA Form 21-0958 to initiate a notice of disagreement is applicable to claims and appeals filed on or after March 24, 2015. See 38 C.F.R. § 20.201 (2015); 79 Fed. Reg. 57660-57698 (Sept. 25, 2014). Thus, as in the instant case the Veteran's claim was received prior to March 24, 2015, the NOD need not be filed using the specific form required by the Secretary, VA Form 21-0958. In subsequent rating decisions date in March 2009, November 2009, March 2010, and January 2011, the RO continued the 10 percent rating for hiatal hernia associated with GERD, and the Veteran in subsequent statements continued to seek an increased rating and continued to ask for reconsideration of the 10 percent rating assigned. See statements from the Veteran dated in August 2008, April 2010, June 2010, and April 2011. FINDING OF FACT Throughout the entire appeal period, the competent medical evidence and competent and credible lay evidence demonstrates that the Veteran's hiatal hernia with associated GERD results in persistent recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, with substernal, arm, and shoulder pain, productive of considerable impairment of health. Although there was pain and vomiting, symptoms of material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health have not been demonstrated. CONCLUSION OF LAW The criteria for a 30 percent evaluation, but not higher, for hiatal hernia with associated GERD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2015); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). The duty to notify has been met. See September 2005 and November 2008 VCAA correspondence, October 2015 Board Hearing transcript and Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that the Veterans Claims Assistance Act of 2000 (VCAA) notice pertaining to degree of disability and effective date came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided substantial content-complying VCAA notice, the claim for an increased rating for hiatal hernia with associated GERD was readjudicated as evidenced by the statement of the case, dated in July 2012. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.) Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The United States Court of Appeals for the Federal Circuit (Federal Court of Appeals) has held that "absent extraordinary circumstances,...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, no more notice is required. VA also has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment records, post-service treatment records, claims submissions, and lay statements have been associated with the record. It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. VA treatment records show that the Veteran was applying for disability benefits from the Social Security Administration (SSA) due to his back disability. See VA treatment records dated in August 2008 and September 2008. However, VA need only obtain relevant SSA records, which, under 38 U.S.C. § 5103A, are those records that relate to the disability for which the appellant is seeking benefits and have a reasonable possibility of helping to substantiate the claim. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). When a SSA decision pertains to a completely unrelated medical condition, and a veteran makes no specific allegations that would give rise to a reasonable belief that the medical records may nonetheless pertain to the disability for which a veteran seeks benefits, relevance is not established. Id. Thus, in the instant case, VA's duty to assist does not extend to obtaining SSA records. The Veteran also was afforded VA examinations in September 2005, February 2009, March 2010, October 2010, September 2013, and March 2016. The Veteran also submitted an esophageal conditions disability benefits questionnaire (DBQ) dated in October 2015. The Veteran in September 2013 and during his October 2015 Board hearing stated that the September 2013 VA examination was inadequate as it lasted two minutes and that the examiner did not ask him any questions. While the September 2013 VA examination report is brief, the Veteran subsequently submitted the October 2015 DBQ and was afforded a VA examination in March 2016. Thus, the Board finds that the VA examinations in conjunction with the other medical and lay evidence of record are adequate to rate the service-connected hiatal hernia with associated GERD. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Furthermore, as will be discussed in the analysis below, a 30 percent rating is being granted for the Veteran's hiatal hernia with associated GERD for the entire appeal period. The Veteran in August 2014 stated that he was entitled to a 30 percent rating. However, as the Veteran did not explicitly articulate that the grant of a 30 percent rating would satisfy his appeal, he is presumed to be seeking the maximum possible evaluation under the applicable rating criteria. See AB v. Brown, 6 Vet. App. 35 (1993) (holding that, where there is no clearly expressed intent to limit the appeal, VA is required to consider entitlement to all available evaluations for that disorder). Rating Criteria A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings will be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected hiatal hernia with associated GERD is rated under Diagnostic Code (DC) 7346. Under DC 7346, a 10 percent rating is assignable when there are two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is assignable for 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 assignable 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. 38 C.F.R. § 4.114, DC 7346. Dysphagia is defined as difficulty in swallowing. See Dorland's Illustrated Medical Dictionary, 587 (31st ed. 2007). Pyrosis is defined as heartburn. Id. at 1587. Hematemesis is defined as the vomiting of blood. Id. at 842. Melena is defined as the passage of dark-colored feces stained with blood pigments or with altered blood. Id. at 1142. Regurgitation is defined as the movement of undigested or partially digested food upward through the esophagus, such as vomiting. Id. at 1645. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. The pertinent evidence is addressed in detail below. Additional lay and medical evidence in the record is cumulative of the evidence being presented. Evidence On VA examination in September 2005, the Veteran denied a history of nausea, vomiting, dysphagia, hematemesis, and melena. He complained of epigastric pain and heartburn several times daily and of regurgitation several times per week. The Veteran reported continuous medication use of Maalox and Tums. The Veteran weighed 158 pounds. The examiner reported that there were no signs of anemia, there was no weight change nor signs of significant weight loss or malnutrition. The examiner opined that hiatal hernia caused no significant effects on the Veteran's usual occupation. VA medical records show that in March 2007 the Veteran was treated in the emergency room for severe abdominal pain with no bloody stools. VA treatment records show that in April 2008 and September 2008 the Veteran had abdominal pain. In January 2008 and March 2009 he did not have difficulty swallowing. In August 2009 the records shows he had epigastric pain, acid reflux, pyrosis, and regurgitation. On VA examination in February 2009, the examiner noted that a September 2005 barium swallow study showed a normal swallowing reflux, however over the years the Veteran had a worsening of GERD symptoms, to include esophageal burning, nausea, feeling of regurgitation without vomiting and constant epigastric pain. He denied difficulty swallowing, hematemesis, anemia or weight fluctuations. On VA examination in March 2010, the Veteran complained of reflux with regurgitation when bending over. He slept in a recliner and frequently had episodes of nausea and vomiting that woke him up. He was unable to swallow very well and complained of nausea and vomiting several times per week. He complained of dysphagia less than once per month. He had esophageal distress weekly accompanied by frequent substernal pain. The examiner noted that the Veteran had daily heartburn, pyrosis and regurgitation. He denied a history of hematemesis or melena. The physical exam shows that the Veteran's general health was poor and there were no signs of anemia. The Veteran was unable to lie down flat for more than a few minutes without experiencing reflux. He weighed 170 pounds. On VA examination in October 2010, the Veteran reported having a constantly upset stomach and constipation. His body weight was not affected and he reported having dysphagia, heartburn, epigastric pain, reflux, regurgitation of stomach contents, nausea and vomiting. His symptoms occurred constantly and he was treated with Omeprazole. At the time of the examination he had no scapular pain nor arm pain. He did not have hematemesis. He reported that his hiatal hernia limited the way he could sleep and that he had to use a hospital bed. The examiner commented that there were no signs of malaise and the hiatal hernia condition did not cause malnutrition nor anemia. In a statement dated in April 2011 the Veteran stated that he had vomiting and no feeling in his left hand and arm. A VA medical record in December 2012 shows that the Veteran had constant pain from his left shoulder to his left hand and upper left back, which began in 2005. On VA examination in September 2013, the examiner stated that the Veteran had reflux, nausea, and vomiting four or more time per year with an average duration of less than one day. In August 2014 the Veteran stated that he could not feel his arm and had to sleep in a reclining chair. During the Board hearing in October 2015, the Veteran testified that he had to sleep in a recliner because he had to keep his head elevated at night or else he would wake up and vomit. He reported that he had constant heartburn and numbness in his left arm. He also stated "(m)y stomach is always giving me a fit." On the October 2015 DBQ for esophageal conditions the examiner did not examine the Veteran but reviewed the record and indicated that the Veteran had hiatal hernia and GERD, with persistently recurrent epigastric distress twice per year, pyrosis twice per year, and reflux three times per year. VA medical records in February 2015 show that the Veteran did not have difficulty swallowing and did not have unintentional weight loss. VA treatment records from August 2006 to November 2015 show that the Veteran's weight ranged from 161 pounds to 171 pounds. On VA examination in March 2016, the examiner noted that the Veteran slept in a recliner, had constant heartburn, and left arm numbness, which the Veteran did not associate with hiatal hernia and GERD. His medications included Omeprazole and Tums. In presenting the medical history as reported by the Veteran the examiner stated that the symptoms were intermittent as he may be asymptomatic for a week and then have two weeks of symptoms. Such symptoms included epigastric pain, nausea, problems swallowing, without regurgitation. There was no melena and the examiner noted that the Veteran's weight has been stable over the years. The Veteran reported having right arm numbness. Upon examination, the examiner determined that the Veteran's symptoms due to his esophageal condition included epigastric distress, dysphagia, pyrosis, nausea, and reflux. The symptoms occurred four or more times per year and lasted less than one day. The Veteran weighed 165 pounds. Current complete blood count (CBC) laboratory testing essentially was normal. The examiner reported that an upper endoscopy in November 2010 shows that the Veteran had a small sliding hiatal hernia with spontaneous reflux. Although the examiner reported that the current esophagram conducted during the examination shows normal results, he explained it did not invalidate the prior studies demonstrating the conditions but showed that the conditions did not radiographically appear to be worse. The examiner noted that the Veteran described chronic GERD symptoms of varying degrees that he managed principally with dietary modifications. However, he described his ability to maintain independent living. He found it probative that the Veteran's current general chemistry and hematology lab work were normal, the current esophagram was normal, and his physical examination was congruent with these findings. Thus, the March 2016 VA examiner opined that the Veteran's hiatal hernia associated with GERD was less likely than not posing considerable or severe impairment of the Veteran's health. Also, in a brief in September 2016 the Veteran's representative indicated that the Veteran's hiatal hernia with associated GERD has progressed over the years, especially in terms of increased shoulder pain impacting his daily life. Analysis The Board finds that the evidence of record more nearly approximates the criteria for a 30 percent rating for hiatal hernia with associated GERD for the entire appeal period. The Veteran has had persistent recurrent epigastric distress as throughout the appeal period he complained of epigastric pain and distress. See VA examinations dated in September 2005, February 2009, March 2010, October 2010, and March 2016; VA treatment records dated in August 2009 and October 2010; October DBQ for esophageal conditions, and October 2015 Board hearing transcript. Although the Veteran denied having dysphagia or trouble swallowing as indicated primarily on the VA examinations in September 2005 and February 2009, his complaints and symptoms of dysphagia were documented on VA examinations dated in March 2010, October 2010, and March 2016. Notably, the March 2016 VA examiner found it noteworthy that the Veteran reported that his symptoms were intermittent as he may be asymptomatic for a week and then have two weeks of symptoms, which included problems swallowing. Further, throughout the appeal period the Veteran had had symptoms of pyrosis and regurgitation. See VA examinations dated in September 2005, March 2010, October 2010, February 2009; and March 2016; VA treatment records dated in August 2009; and the October 2015 Board hearing transcript. These symptoms throughout the appeal period were accompanied by substernal or arm or shoulder pain. See VA examinations dated in March 2010 and March 2016; VA treatment record dated in December 2012 that shows the Veteran had left shoulder and left arm pain beginning in 2005; lay statements dated in April 2011 and August 2014; October 2015 Board hearing transcript; and, September 2016 brief from the Veteran's representative. The evidence also shows that medication has been continually required. The medical evidence combined with the Veteran's lay statements and testimony shows that the Veteran's hiatal hernia associated with GERD throughout the appeal period has been manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain. The Board finds the Veteran's statements and testimony to be competent and credible as they are consistent with the medical findings of record. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Thus, the Board finds that the Veteran's hiatal hernia associated with GERD rises to the level of considerable impairment of health. As such, the competent and probative evidence of record nearly approximates the criteria for a 30 percent rating under DC 7346. While the Board recognizes that the March 2016 examiner opined that hiatal hernia associated with GERD was less likely than not posing considerable impairment of the Veteran's health, the Board finds this opinion to be of minimum probative value as the examiner did not consider the Veteran's continuous complaints of arm and shoulder pain. Furthermore, the examiner's opinion is inconsistent as he in part based it on the current esophagram which he stated did not invalidate prior studies but merely showed that the esophageal conditions did not radiographically appear to be worse. It is of significant import that on a prior VA examination in March 2010 the examiner opined that although there were no signs of anemia the Veteran's overall general health was poor. This opinion is significant as the Veteran's symptoms during the March 2010 VA examination were essentially similar to his symptomatology evaluated on the March 2016 VA examination. Thus, the March 2016 VA opinion is inadequate to the extent that the examiner opined that the Veteran's hiatal hernia associated with GERD does not cause considerable impairment of health. The Board further finds that a disability rating greater than 30 percent is not warranted, as the evidence does not more nearly approximate the criteria for a 60 percent rating under DC 7346. While the Veteran during the appeal period has had pain and vomiting, he has not had material weight loss at any time during the appeal period. See VA examinations dated in September 2005, February 2009, October 2010, and February 2016. The evidence during the appeal period also shows that the Veteran did not have hematemesis. See VA examinations dated in September 2005, February 2009, March 2010, and October 2010. He also denied having melena. See VA examinations dated in September 2005, March 2010, and March 2016. There were specific findings of no anemia. See VA examinations dated in September 2005, February 2009, March 2010, and October 2010. The Veteran's general hematology and laboratory testing was normal. See March 2016 VA examination. Furthermore, the Veteran has not contended that his hiatal hernia associated with GERD is productive of severe impairment of health warranting a 60 percent rating . Instead, as discussed earlier, he contended in August 2014 that he is entitled to a 30 percent rating. Accordingly, after resolving the benefit of the doubt in favor of the Veteran under 38 U.S.C.A. § 5107(b), the Board finds that a rating of 30 percent but no higher is warranted for hiatal hernia associated with GERD for the entire appeal period. Additional Considerations Finally, the Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. Although on VA examination in February 2009 the Veteran indicated that he was unemployable as he could not lift, stand, push or pull without having stomach pain, on VA examination in March 2010 he clarified that it was not his hiatal hernia and GERD that caused his unemployability. Instead, he stated that he was unemployed due to his back disability and difficulty getting along with people. In subsequent statements and testimony, the Veteran did not contend that he was unemployable due to his service-connected hiatal hernia associated with GERD. For these reasons, the issue of entitlement to TDIU due to the service-connected hiatal hernia associated with GERD has not been raised pursuant to Rice. It is also noteworthy that on VA examination in March 2016 the examiner indicated that the Veteran after service worked as a trucking freight load manager and retired after 2001. The March 2016 examiner opined that it was less likely than not that the Veteran's hiatal hernia and GERD resulted in marked interference with daily life or would prohibit sedentary or light physical types of work. Moreover, although on VA examination in March 2016 the examiner opined that the Veteran's esophageal conditions impacted his ability to do moderate and heavy physical work, the threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptoms, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology pertaining to his service-connected hiatal hernia associated with GERD. The Board finds that the Veteran's service-connected disability is manifested by symptoms such as epigastric distress, dysphagia, pyrosis, regurgitation, arm and shoulder pain. These symptoms are addressed by the rating criteria. Thus, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). The Board notes that, under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. As such, referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b)(1). (CONTINUED ON NEXT PAGE) ORDER An evaluation of 30 percent, but no higher, for the service-connected hiatal hernia associated with GERD is granted, subject to the laws governing the award of monetary benefits. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs