Citation Nr: 1604250 Decision Date: 02/04/16 Archive Date: 02/11/16 DOCKET NO. 10-31 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for acquired genetic damage as the result of the exposure to ionizing radiation. 2. Entitlement to service connection for non-malignant thyroid nodular disease as the result of the exposure to ionizing radiation. 3. Entitlement to an initial compensable rating for the service-connected ventral incisional hernia. 4. Entitlement to a rating higher than 30 percent for the service-connected esophageal cancer secondary to radiation exposure with residuals of gastroesophageal reflux disease (GERD). ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from July 1952 to July 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in May 2009 and August 2009 of the RO. In February 2014, the Veteran was scheduled for a hearing with the Board, but failed to report. In March 2014 the Board remanded the issues for further development. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). In the March 2014, the Board noted that the issue of an earlier effective date for an increased rating for esophageal cancer is moot as an increased rating has not been granted during the current appeal period. A higher rating for esophageal cancer is not granted herein and the issue of an earlier effective date for an increased rating remains moot. In March 2014 the Board also found that the issue of an earlier effective date for the grant of service connection for esophageal cancer was withdrawn and referred the issue of an increased rating for the service-connected anxiety disorder to the Agency of Original Jurisdiction (AOJ), which the Veteran raised during his April 2010 Decision Review Officer Hearing (DRO). This issue continues to be referred to the AOJ along with the Veteran's claim of service connection for arthritis secondary to esophageal cancer, which the Veteran raised in an August 2014 statement. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. A disability manifested by acquired genetic damage is not currently shown. 2. Non-malignant thyroid nodular disease was not clinically evident during the Veteran's active service or for many years thereafter and the most probative evidence indicates that his post-service thyroid nodules are not causally related to his active service or any incident therein, including exposure to ionizing radiation. 3. During the entire appeal period, the Veteran's esophageal cancer with GERD has not resulted in symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. 4. For the entire appeal period the ventral incisional hernia has not required a supporting belt nor has it been inoperable. CONCLUSIONS OF LAW 1. A disability manifested by acquired genetic damage was not incurred in or aggravated by service, and is not currently shown. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.311 (2015). 2. Non-malignant thyroid nodular disease was not was not incurred during active service, nor may it be presumed to have been incurred therein, including as the result of exposure to ionizing radiation. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2015). 3. The criteria for a rating higher than 30 percent for esophageal cancer secondary to radiation exposure with residuals of GERD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7343, 7346 (2015). 4. The criteria for an initial compensable rating for ventral incisional hernia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7343, 7346 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. As for the claim for an initial compensable rating for the service-connected ventral incisional hernia, the appeal arises from disagreement with the initial evaluation following the grant of service connection for ventral incisional hernia. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As to the remaining issues on appeal, the Veteran has not alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letters dated in August 2007 and February 2009 of the criteria for establishing service connection and an increased rating, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. The letters accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in May 2009 and in August 2009. Nothing more was required. VA also has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claims. Service treatment records, post-service treatment records, identified and relevant private treatment records, claims submissions, and lay statements have been associated with the record. In a May 2009 letter the Veteran was advised that VA did not do genetic testing and he has not submitted nor authorized VA to obtain such test results. The Veteran also was afforded VA examinations including in December 2006, April 2007, July 2009, and October 2014. Although the July 2009 VA examiner did not review the claims folder, the examination focused on the ventral incisional hernia and esophageal cancer with residuals of GERD, which are on appeal as increased rating claims and thus the examination along with the other evidence of record is adequate for rating purposes. In the March 2014, the Board requested that the VA examiner evaluate any scars associated with the Veteran's service-connected esophageal cancer and ventral incisional hernia. The October 2014 VA examiner addressed whether the scars were symptomatic and the area that they covered. Thus there has been substantial compliance with the Board's remand directives and no further development is required. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, 287 F.3d 1377 (Fed. Cir. 2002) (holding that there was no Stegall violation when there has been substantial compliance with the Board's remand order). Consideration has been given to the Veteran's July 2010 request that he be examined by an oncologist. The October 2014 VA examination was conducted instead by a primary care doctor. However, on review, the opinion is fully adequate as it was provided by a medical professional who is qualified through education, training, or experience to offer medical diagnosis, statements, and opinions. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (physician's assistant was competent to perform examination). The Board may assume a VA medical examiner is competent. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (VA may presume the competence of an examiner, and an appellant bears the burden of persuasion to show that the Board's reliance on an examiner's opinion was in error). Thus the Board finds the VA examinations and opinions to be thorough and adequate upon which to base a decision with regard to the Veteran's claims of service connection and increased rating claims. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). As for the service connection claim for genetic damage, the October 2014 VA examination is fully adequate as the examiner reviewed the claims folder, provided medical histories, clinical evaluations and opinions along with a supporting rationale. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As for the increased rating claims, the VA examiners provided the information necessary to evaluate the Veteran's disabilities under the applicable rating criteria and the December 2006, April 2007 and October 2014 examiners reviewed the claims folder in conjunction with examining the Veteran. As for the Veteran's claim for non-malignant thyroid nodular disease as the result of the exposure to ionizing radiation, the RO has also conducted appropriate evidentiary development in accordance with 38 C.F.R. § 3.311, including obtaining a dose estimate from the service department and a medical opinion from VA's Chief Public Health and Environmental Hazards Officer regarding the Veteran's thyroid nodules. The opinion is adequate. It is thorough, predicated on a review of all available evidence, and contains a detailed rationale. Id. Accordingly, the Board finds that VA's duty to obtain a VA examination or opinion has been met with respect to the claim of service connection for thyroid nodules. 38 C.F.R. § 3.159(c)(4). For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development is necessary on the issues now being decided. Service Connection Legal Criteria Generally, to prove service connection, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. Genetic Damage With regard to the Veteran's claim of service connection for acquired genetic damage as the result of the exposure to ionizing radiation, service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. §§ 1110, 1131; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). The Court has also held that in the absence of proof of a present disability, there can be no valid claim for service connection. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran contends that he has genetic damage due to his radiation exposure during Operation Castle in 1954. See April 2007 DRO Hearing, April 2010 DRO Hearing, and September 2003 letter from the Defense Threat Reduction Agency (DTRA). In April 2007, the Veteran's private doctor, Dr. C.E.G., stated that he has been treating the Veteran since 1999 for his skin problems. Over the past eight years he has had innumerable cutaneous malignancies and pre-cancerous lesions and his radiation exposure in 1954 most likely resulted in acquired genetic damage. In April 2007, another private doctor, an oncologist, Dr. E.A.M., opined that the Veteran's skin cancer and esophagus cancer are related to his radiation exposure in 1954, that this exposure resulted in acquired genetic damage, and that he continued to be at excessive risk for thyroid cancer and myelodysplastic syndrome in addition to other radiation related solid tumor cancers. In June 2009, Dr. E.A.M. opined that the Veteran obtained significant illness from radiation exposure and is expected to have more complications from that exposure in the future. She noted that his total body exposure makes genetic damage inevitable. In October 2009 and February 2010 Dr. E.A.M. noted that the Veteran had esophageal and skin cancer as well as cataracts status post radiation exposure. She noted that due to his radiation exposure he had a high risk for a bone marrow disorder and thyroid cancer and had residual genetic damage. The private examiners opined that the Veteran had genetic damage related to radiation exposure that, in turn, led to his development of skin cancer, esophagus cancer, and cataracts. The Veteran has been service connected for these radiation-related disorders. However, as the private examiners did not address whether the Veteran has any other disability manifested by acquired genetic damage, their opinions are of minimum probative value. With regard to medical opinions, the credibility and weight to be attached to a medical opinion are within the Board's province as finder of fact. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Among the factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Conversely, on VA examination in October 2014, the examiner noted that the Veteran was claiming that his current disability is chromosomal damage and that he has not been provided with the necessary tests. The examiner explained that genetic damage occurs daily and the threshold question was whether there was excessive genetic damage due to the Veteran's radiation exposure in 1954 that resulted in any definable current disability. The VA examiner found no rationale behind the favorable opinion from Dr. E.A.M. that the Veteran suffered genetic damage due to his radiation exposure. While he conceded the presumption of additional genetic damage as this was not provable nor disprovable by any known tests, he determined that genetic damage was not manifested by a current disability. The VA examiner explained that if there was an impairment in the immune system, one would expect to see signs of this such as increased infections, lymphomas, and leukemias, which have not been shown. He opined that the Veteran's contention that he has genetic damage cannot be accepted without a clinical manifestation and currently there was no discernable disability related to the claimed genetic damage. Thus the VA examiner concluded that in his professional opinion the Veteran does not have a current disability manifested by acquired genetic damage, to include any impairment of the immune system. However, if the Veteran developed any further cancers, specifically leukemia and lymphoma then these should be service connected. The October 2014 VA opinion is highly probative as it was based on medical principles and applied to the facts of the case. Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). The examiner considered the Veteran's medical history and relevant longitudinal complaints in proffering his opinion. As for the Veteran's lay assertions that he has acquired genetic damage as the result of the exposure to ionizing radiation, the Veteran is competent to report that which he has personally experienced, such as pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Because genetic damage is generally not diagnosed by readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the Veteran's lay statement regarding a current disability manifested by genetic damage lacks competency. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). Moreover, the Veteran's opinion that he has a disability manifested by genetic damage is outweighed by the October 2014 VA examiner's opinion establishing that he does not have such disability. A disability manifested by genetic damage is a complex medical matter beyond the ken of a layperson and in this regard, a medical professional has greater skill. Id. In sum, the evidentiary requirement of demonstrating a current disability has not been satisfied. There is no doubt of material fact to be resolved in the Veteran's favor, and the claim of service connection for acquired genetic damage as the result of the exposure to ionizing radiation must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Non-Malignant Thyroid Nodular Disease Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by one of three possible methods. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancer that are presumptively service connected specific to radiation-exposed veterans. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Second, a "radiogenic disease" may be service connected pursuant to 38 C.F.R. § 3.311. Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that a disease diagnosed after discharge from service was otherwise incurred during active service, including as a result of exposure to radiation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Under section 3.311, in all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period as specified in 38 C.F.R. § 3.307 or 3.309, and it is contended the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses. In pertinent part, section 3.311(b)(1) provides that upon initial review of a claim, when it is determined that (i) a Veteran was exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons; (ii) such Veteran subsequently developed a radiogenic disease; and (iii) such disease first became manifest within the applicable specified period, before its adjudication, the claim will be referred to the Under Secretary for Benefits for consideration as to whether sound scientific and medical evidence, including an advisory medical opinion from the Under Secretary for Health if necessary, indicates that the claimed disease resulted from exposure to radiation in service. With respect to the third means of establishing service connection for a condition claimed to be due to exposure to ionizing radiation, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory provisions concerning radiation exposure. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994) (the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation). The Veteran contends that he has non-malignant thyroid nodular disease due to ionizing radiation exposure during service. See April 2010 DRO hearing. Although a January 2015 ultrasound did not show that the Veteran had thyroid nodules, other ultrasounds during the appeal period show that the Veteran had thyroid nodules. See ultrasounds dated in September 2008, March 2010, January 2011, and April 2012. The Veteran's claim of service connection for thyroid nodules was received in April 2007 and thus the requirement that a current disability exist is satisfied as thyroid nodules were diagnosed during the pendency of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As explained above, service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in three different ways. Davis, 10 Vet. App. at 211; Rucker, 10 Vet. App. 71. With respect to the first way of establishing service connection, 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d) provide for presumptive service connection for certain enumerated diseases in Veterans who participated in a "radiation risk activity," including onsite participation in a test involving the atmospheric detonation of a nuclear device. Although the Veteran is a confirmed participant in Operation Castle, the enumerated diseases in section 3.309(d) do not include a thyroid disability other than cancer of the thyroid. Thus, section 3.309(d) provides no basis upon which to grant service connection for thyroid nodular disease. Second, service connection may be established for certain radiogenic diseases pursuant to special development procedures specifically prescribed in 38 C.F.R. § 3.311. Nonmalignant thyroid nodular disease is a "radiogenic disease" under section 3.311. In a July 2009 Memorandum, the Chief Public Health and Environmental Hazards Officer noted that the Veteran was diagnosed with non-malignant thyroid nodular disease and the DTRA confirmed that the Veteran was a participant in Operation Castle conducted in 1954. The DTRA indicated that doses of ionizing radiation that the Veteran could have received during this operation are not more than a mean total external gamma dose of 9.5 rem, upper bound gamma dose of 23 rem, mean total external neutron dose of 0 rem, upper bound neutron dose of 0 rem, internal committed alpha dose to the thyroid of .004 rem, upper bound internal committed alpha dose to the thyroid of .039 rem, internal committed beta plus gamma dose to the thyroid of 3.8 rem, and upper bound internal committed beta plus gamma dose to the thyroid of 37 rem. The Officer noted that one study reported an elevated risk of benign thyroid nodules post Chernobyl, which was considered by the World Health Organization to be in line with the few studies associating benign thyroid nodules and other autoimmune diseases with radiation exposure. The "The BEIR VII" report indicated that several non-malignant diseases including thyroid disease show a dose response, however they found it was not possible to rule out a model with a threshold of 50 rem or higher. The Veteran's thyroid dose was 37 rem. Further published results of a follow up study of thyroid disease in atomic bomb survivors show that for individuals over the age of 20 when exposed, the excess risk of developing benign thyroid nodules was not considered significantly different from the unexposed controls. Thus the Officer opined that it is unlikely that the Veteran's non-malignant thyroid nodular disease can be attributed to his radiation exposure while in military service. In August 2009, the Director of the Compensation and Pension Service noted that the Veteran's records were referred to the Under Secretary of Health and that in the July 2009 Memorandum the Chief Public Health and Environmental Hazards Officer, writing for the Under Secretary, determined that it is unlikely that the Veteran s non-malignant thyroid nodular disease can be attributed to his radiation exposure. Reference was made to the following uncontested facts: the Veteran was 23 years old when exposed to ionizing radiation during Operation Castle; non-malignant thyroid nodular disease was diagnosed 54 years after the exposure; the Veteran had a history of smoking 1 to 2 packs per day for 20 or 30 years until he quit in 1979; and, the Veteran had a family history of lymphoma, breast cancer, bladder cancer, and pancreas cancer. Following the review of the evidence in its entirety the Director of the Compensation and Pension Service opined that there is no reasonable possibility that the Veteran's non-malignant thyroid nodular disease can be attributed to exposure to ionizing radiation during service. In sum, the special development procedures as stipulated in 38 C.F.R. § 3.311 resulted in a conclusion that there was no reasonable possibility that the Veteran's non-malignant thyroid nodular disease resulted from radiation exposure in service. Finally, service connection may be established with proof of actual direct causation, without regard to the statutory provisions concerning radiation exposure. Combee, 34 F.3d at 1043-44. While the Veteran does not assert nor do service treatment records show that he had a thyroid nodular disease in service, he does contend that his oncologist feels that his thyroid nodules are a result of onsite exposure to radioactive fallout. See April 2007 DRO Hearing. The Veteran as a lay person is competent to report a contemporaneous diagnosis. Jandreau v. Nicholson, 492 F3d. 1372, 1377 (2007). However, the opinions and medical records from his private oncologist, Dr. E.A.M, dated in April 2007, June 2009, October 2009, and February 2010, discussed above, do not establish that his thyroid nodules are related to his radiation exposure but show that he was at high risk for developing thyroid cancer. Thus assuming without conceding that the Veteran's April 2007 testimony is credible, the Veteran did not relate Dr. E.A.M.'s rationale for such an opinion and his testimony is outweighed by the probative evidence of record discussed above, to specifically include the July 2009 Memorandum from the Chief Public Health and Environmental Hazards Officer. The probative evidence does not indicate actual causation or other basis to establish service connection on a direct basis. Thyroid nodules were not shown in service and the probative evidence does not show that any thyroid disability is causally related to the Veteran's in-service ionizing radiation exposure. The record otherwise contains no basis upon which to award service connection for this disability. In summary, the Board concludes that the most probative evidence show that non-malignant thyroid nodular disease was not present during service nor is it related to the Veteran's active service or any incident therein, including exposure to ionizing radiation. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 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 that are 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 evaluations shall 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. In addition, 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 analyses 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. A Rating Higher than 30 percent for Esophageal Cancer with Residuals of GERD The Veteran's esophageal cancer with GERD is rated under Diagnostic Code 7343. Under this code, malignant neoplasms of the digestive system, exclusive of skin growths are to be initially rated at 100 percent. A note to the rating criteria provides that an evaluation of 100 percent shall continue beyond the cessation of any surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. If there has been no local recurrence or metastasis, the condition is to be rated on its residuals. The Veteran was in receipt of a 100 percent rating under Diagnostic 7343 from September 5, 2001 to January 32, 2002 and 30 percent from February 1, 2002 onward. During the current appeal period the Veteran's residuals have been rated under Diagnostic Code 7346 for hiatal hernia. Under Diagnostic Code 7346, a 10 percent rating is warranted for a hiatal hernia with two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Lastly, a 60 percent rating is warranted 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. The criteria under Diagnostic Code 7346 are conjunctive, not disjunctive; thus all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). Material weight loss is not defined in Diagnostic Code 7346, but "substantial weight loss" is defined under 38 C.F.R. § 4.112 as a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer, and "minor weight loss" is defined as a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. "Baseline weight" means the average weight for the two-year-period preceding the onset of the disease. In May 2007, the Veteran requested that his claim for an increased rating for esophageal cancer with GERD be treated as new claim. The RO in a May 2007 letter informed the Veteran that his claim would not be certified to the Board. Thus the issue on appeal is not an initial rating and the appeal arises from the August 2009 rating decision. A January 2002 private medical record shows that the Veteran was diagnosed with esophageal cancer in October 2000. A private medical record in April 2009 shows that in 2000 the Veteran had surgery resulting in anatomic loss of the lower esophagus and lower esophageal sphincter. The examiner noted that the loss of the esophageal sphincter caused chronic GERD. On VA examination in December 2006, the Veteran complained of having dysphagia, epigastric distress, nausea and vomiting less than weekly, with occasional substernal pain. He also had weekly heartburn and denied having regurgitation. The examiner noted that there was no history of regurgitation, hematemesis or melena, and the Veteran had esophageal dilation 2 years earlier. His weight was 185.4 pound, with a weight loss of less than 10 percent compared to the baseline weight. There were no signs of significant weight loss or malnutrition. As for scarring, the Veteran had a scar in the upper abdomen epigastrium, which was 3 centimeters wide and 22 centimeters long. It was not tender, did not adhere to underlying tissue, and did not result in limitation of motion or loss of function. There was no ulceration nor breakdown over the scar. There was no underlying tissue loss, and the scar was not elevated nor depressed. The examiner noted that there was no discoloration and the texture of the scarred area was normal. The Veteran also had a scar on the left side of the neck due to the esophageal surgery. There was no pain. The neck scar was 1 centimeter wide and 7 centimeters long. It was not tender, did not adhere to underlying tissue, and did not result in limitation of motion or function. There was no underlying soft tissue damage and there was no skin ulceration nor breakdown over the scar. There was no underlying tissue loss, the scar was not elevated nor depressed. The examiner noted that there was no disfigurement of the head, face or neck, no discoloration and the texture of the scarred area was normal. On VA examination in April 2007, the examiner noted that the Veteran did not have a history of nausea and vomiting but did have dysphagia at least weekly. He was always able to swallow liquids, was able to swallow soft food most of the time, and frequently could swallow solid food. The Veteran had heartburn once per week and regurgitation of partially digested food several times per week. There was no hematemesis, melena, and esophageal dilation. The examiner commented that the Veteran did not have anemia and overall his health was good. The condition did not affect the Veteran's usual daily activities. Private medical records in May 2007 shows that the Veteran's surgery for esophageal cancer left him with chronic reflux, dysphagia, and a 14 pound weight loss from his pre-surgery weight. The records in May 2009 show that GERD was a residual of the esophageal surgery in October 2010. In May 2010, the records show that the Veteran weighed 183 pounds. On VA examination in July 2009, the Veteran reported that he vomited less than weekly, always had dysphagia, was able to swallow foods and liquids, and had daily heartburn and regurgitation. There was no history of hematemesis nor melena. While there was a history of esophageal dilation there was none in 12 months. Overall the Veteran's health was good. There were no signs of anemia, the Veteran weighed 181 pounds and had a weight loss of less than 10 percent compared to his baseline weight. The examiner commented that there was no significant weight loss or malnutrition and opined that GERD was the problem associated with the esophageal surgery. The Veteran's condition moderately affected his ability to do chores, shop, and travel. GERD prevented him from exercising and engaging in sports and recreational activities. It did not affect his ability to feed, bath, and dress himself. On VA examination in October 2014, the examiner noted that the Veteran's esophageal cancer appeared cured but the Veteran still had significant symptoms of GERD, to include reflux, regurgitation, substernal pain, and sleep disturbances. The symptoms occurred 4 times per year and lasted less than one day. The Veteran reported that he had dilation and symptoms of dumping syndrome, to include dizziness and near syncope that occurred a couple of times per month. His baseline weight was 200 pounds before his esophageal surgery and his current weight was 148 pounds. The examiner noted that the Veteran did not have an esophageal stricture, spasm of the esophagus, or an acquired diverticulum of the esophagus. The examiner found that the Veteran did have residual scars, but the scars were not painful, unstable and the total area of all related scars was not greater than 39 square centimeters (6 square inches). Further, the scarring on the trunk was not painful nor unstable, with frequent covering of the skin. The scar was 20 centimeters x .2 centimeters. The approximate total area was .4 centimeters squared. It was not deep and nonlinear. In light of the above, the evidence does not more nearly approximate the criteria for a 60 percent rating under Diagnostic Code 7346 as the Veteran's symptoms are not manifested by pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. While the Veteran during the appeal period has had pain and vomiting, it is unclear whether at any time during the appeal period he had material weight loss. His baseline weight prior to his surgery was 200 pounds. See October 2014 VA examination. On VA examinations in December 2006 and July 2009 the examiners noted that he had a weight loss of less than 10 percent from his baseline weight as he weighed 185.4 pounds and 181 pounds respectively. On VA examination in October 2014 he weighed 148 pounds, which represents over a 20 percent weight loss from his baseline weight of 200 pounds and under 38 C.F.R. § 4.112 meets the criteria for substantial weight loss. Whether he sustained this weight loss for three months or longer as required by 38 C.F.R. § 4.112 is unclear. However, assuming without conceding that the Veteran did have material weight loss, the evidence clearly shows that he did not have hematemesis or melena with moderate anemia. See VA examinations dated in December 2006, April 2007, and July 2009. Such is necessary to establish a 60 percent rating. Moreover, the combination of symptoms productive of severe impairment of health is not shown as the Veteran was generally in good health and overall was able to pursue his daily activities with minimal restrictions. See VA examinations dated in April 2007, July 2009, and October 2014. All disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. In the instant case, the Veteran has residual scars from his esophageal surgery and is in receipt of separate noncompensable ratings for a scar on his neck and upper abdomen. He has not disagreed with ratings assigned nor filed a claim for compensable ratings. Moreover, as discussed above, VA examinations show that his scars were not painful and/or unstable, did not have a total area greater than 39 square cm (6 square inches), did not cause limited motion or function, nor disfigurement of the neck. The Board finds that there is no basis for a separate compensable ratings for the scarring. See 38 C.F.R. § 4.118 (prior to and after October 23, 2008 and January 20, 2012). The Board has also considered the Veteran's lay statements that describe his residuals associated with esophageal cancer. While the Veteran is certainly competent to describe his observations, the Board finds the objective medical findings by skilled professionals are more persuasive which, as indicated above, do not support a rating higher than 30 percent for esophageal cancer with GERD nor any additional separate ratings. In essence, the lay evidence, while accepted as credible, does not provide a basis for higher or additional evaluations. In April 2009, the Veteran contended that the anatomical loss of his stomach and bodily systems resulting in GERD should be considered in evaluating his claim. As discussed above, at length, the Veteran is rated under Diagnostic 7343 for esophageal cancer, which provides that if there has been no recurrence nor metastasis, the condition should be rated based on the residuals. Throughout the entire appeal period the evidence shows that the residuals of the esophageal cancer are manifested by GERD. Although GERD is not listed specifically in the Rating Schedule, the most analogous Diagnostic Code is 7346 for hiatal hernia. See 38 C.F.R. § 4.20 (providing for rating by analogy). The Veteran's esophageal cancer and GERD have been rated under this Diagnostic Code and there are not additional applicable rating criteria to consider in the instant case. As the criteria for a rating higher than 30 percent for esophageal cancer with GERD have not been demonstrated, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Ventral Incisional Hernia The Veteran's ventral incisional hernia is rated under Diagnostic Code 7339 for ventral hernia, postoperative. Under Diagnostic Code 7339, a compensable rating begins at 20 percent rating and is warranted for a small hernia, not well supported by belt under ordinary conditions, or for healed ventral hernia or post-operative wounds with weakening of abdominal wall and indication for a supporting belt. A 40 percent rating is warranted for a large hernia, not well supported by belt under ordinary conditions. The assignment of a 100 percent rating is warranted for a massive, persistent hernia, with severe diastasis of recti muscles or extensive diffuse destruction or weakening of muscular and fascial support of abdominal wall so as to be inoperable. In the August 2009 rating decision, the RO granted service connection for ventral incisional hernia secondary to the service-connected esophageal cancer. A noncompensable rating was assigned effective January 7, 2009, the date of the Veteran's informal claim. On VA examination in July 2009, the Veteran reported that he noticed a weakness of the abdominal wall where he had the esophageal cancer operation and developed a ventral wall hernia. He did not have a history of hernia surgical repair. The ventral hernia was 10 centimeters. It was remediable or operable and not previously repaired. No truss or belt was indicated. There was severe weakening of the muscular support of the abdominal wall that was localized. There was moderate weakening of fascial support of abdominal wall that was localized and moderate extent of diastasis of the recti muscle. During the April 2010 DRO hearing, the Veteran stated that he was told he had to use a restraining band around his abdomen. On VA examination in October 2014, the examiner noted that the Veteran developed a ventral hernia after esophageal surgery. Currently it was about 2 centimeters with only slight protuberance. The examiner evaluated the hernia as being a small ventral hernia, which did not require a supporting belt. There were no scars that were painful, unstable or covered a total area greater than 39 square centimeters (6 square inches). The examiner noted that there were no other pertinent physical findings nor symptoms. In sum the evidence shows that the Veteran's ventral incisional hernia has ranged from 2 to 10 centimeters. While he reported in April 2010 that he was instructed to wear a restraining band around his abdomen, this appears to be an isolated incident as VA examinations in July 2009 and October 2014 show that no belt nor truss was required. At most the Veteran experienced moderate diastasis of recti muscle and moderate weakening of fascial support of the abdominal wall. His hernia has not been deemed to be inoperable. Thus the criteria for an initial rating of 20 percent or higher is not approximated. While the October 2014 VA examiner evaluated the Veteran's scarring, the actual scar is associated with the esophageal cancer with GERD, which is service-connected and was addressed above. The evidence does not show nor does the Veteran contend that there is additional scarring associated with the ventral incisional hernia. The Board has also considered the Veteran's lay statements that describe his ventral incisional hernia. While the Veteran is certainly competent to describe his observations, the Board finds the objective medical findings by skilled professionals are more persuasive which, as indicated above, do not support an initial compensable rating of 20 percent or higher. While the lay evidence is accepted as credible, it does not provide a basis for a higher evaluation. Total Disability Rating Based on Individual Unemployability (TDIU) The United States Court of Appeals for Veterans Claims held that, if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether TDIU as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). During the pendency of the appeal, the RO in the August 2009 rating decision granted TDIU. The Veteran did not initiate an appeal with respect to the effective date assigned for the grant of TDIU and has provided no additional argument on this issue. Thus, this issue is not in appellate status. Extraschedular Consideration The Board does have the authority to decide whether the claim should be referred to the Under Secretary for Benefits or the Director of the Compensation Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. However, 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 a veteran's disability level and symptomatology, the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is thus 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 esophageal cancer with GERD and ventral incisional hernia. The Board finds that the Veteran's service-connected esophageal cancer with GERD is manifested by symptoms such as pain, vomiting, epigastric distress, dysphagia, and regurgitation. His ventral incisional hernia is manifested by symptoms such as weakening of the muscular and fascial support of the abdominal wall and diastasis of recti muscle. These symptoms are addressed in the rating schedule under the diagnostic codes discussed above. For these reasons, 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). ORDER Service connection for acquired genetic damage as the result of the exposure to ionizing radiation is denied. Service connection for non-malignant thyroid nodular disease as the result of exposure to ionizing radiation is denied. A rating higher than 30 percent for the service-connected esophageal cancer secondary to radiation exposure with residuals of GERD is denied. An initial compensable rating for the service-connected ventral incisional hernia is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs