Citation Nr: 1756699 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 10-01 595 ) 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 service-connected hiatal hernia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Crawford, Associate Counsel INTRODUCTION The Veteran served on active duty in from January 1980 to May 1984. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. This matter was previously remanded by the Board in September 2014, April 2016, and May 2017 for further development. The matter now returns to the Board for appellate review. The issue of whether new and material evidence had been received to reopen a previously denied claim of entitlement to service connection for human immunodeficiency virus (HIV) was denied in an April 2016 Board decision, and that decision is final. See 38 C.F.R. § 20.1100 (2017). Although finality of a prior Board decision could be vitiated by a finding of clear and unmistakable evidence (CUE) in that decision (see Routen v. West, 142 F.3d 1434, 1438 (Fed. Cir. 1998) (listing CUE as one of three exceptions to the rules regarding finality and effective dates)), such a claim has not been raised here with sufficient specificity to warrant consideration as a CUE motion, and neither the Veteran nor his representative used the term CUE. Therefore, this issue is not currently before the Board, and the Board will not address any arguments that the Veteran's representative made about this issue in this decision. See October 2017 Appellate Brief. In April 2017, the Veteran submitted VA Form 21-22, attempting to appoint Military Order of the Purple Heart as his representative. However, Military Order of the Purple Heart sent a statement revoking the power of attorney asserting that it was invalid. See April 2017 Appellate Brief. Due to the fact that the new VA Form 21-22 was invalid and did not revoke the prior representative, the American Legion remains the Veteran's representative. FINDING OF FACT The criteria for a rating in excess of 10 percent for the service-connected hiatal hernia have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.114, Diagnostic Code 7346 (2017). CONCLUSION OF LAW The Veteran's hiatal hernia is manifested by episodes of infrequent recurrent epigastric distress, pyrosis, regurgitation, substernal arm and shoulder pain, and nausea, but without symptoms productive of considerable or severe impairment of health. REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duty to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, required notice was provided and the Veteran has not alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, VA's duty to notify has been satisfied. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records, VA treatment records, and records from the Social Security Administration (SSA) have been obtained, to the extent available. The Veteran was afforded VA examinations in March 2008, October 2014, May 2016, and June 2017. The Board remanded the case in September 2014 to provide for a more contemporaneous examination to assess the current severity of the Veteran's hiatal hernia. The Veteran was afforded a VA examination in October 2014; however, in April 2016, the Board found that this examination did not address whether the Veteran demonstrated evidence of persistently recurrent epigastric distress, dysphagia, pyrosis, regurgitation, vomiting, material weight loss, hematemesis, melena, or anemia, nor whether his symptoms were productive of considerable or severe impairment of health. The Veteran was afforded a new examination in May 2016. The Veteran's representative argued that this examination did not discuss whether the Veteran's symptomatology was productive of severe or considerable impairment of health. See February 2017 Appellate Brief. In May 2017, the Board remanded the claim to address this issue. Another VA examination was provided in June 2017. The Board finds that the June 2017 VA examination is adequate for rating purposes because it contains specifically sufficient clinical findings, thoroughly lists the Veteran's symptoms as it pertains to his disability, and addresses whether the Veteran's symptoms were productive of severe or considerable impairment of health. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). Furthermore, the VA examinations and medical evidence on record as a whole provide a clear picture for the Board to determine the rating. The Board finds there has been substantial compliance with its September 2014, April 2016, and May 2017 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) In an October 2017 appellate brief, the Veteran's representative made several arguments. First, the Veteran's representative argued that it was not clear whether the Veteran received notice of his 1997 Travel Board hearing. In particular, the record shows that in October 1995, on his VA Form 9, the Veteran requested a personal hearing before the Board in regard to the issues of an increased evaluation for hiatal hernia. While notice was sent on July 29, 1997, a change of address from the Veteran's payee was dated August 15, 1997. The Veteran's representative argued that this was close in time to the hearing notice to raise a doubt as to whether the Veteran received notice. The VA representative also argued that a payee raises rather obvious questions as to capacity and whether or not it was a guardian or trustee rather than the Veteran that should have been communicated with. A June 2005 decision denied an increased rating in excess of 10 percent for hiatal hernia. Second, the Veteran's representative argued that although the Board knew of the Veteran's Social Security Administration (SSA) records since 1996, it was not added to the file until 2014. Third, the representative argued that the Veteran's postservice medical records through the 1990s were incomplete on their face. The arguments made by the Veteran's representative relate to prior Board decisions, as they relate to the matter of the rating to be assigned for the Veteran's hiatal hernia. As mentioned in the Introduction, in order to challenge the finality of a prior Board decision, a motion for CUE must be raised. Since neither the Veteran nor his representative used the term CUE, the issue is not currently before the Board, and the Board will not address these arguments. Finally, neither the Veteran nor his representative has raised any other issues with the duty to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to the duty to assist argument). For these reasons, the Board concludes that VA has fulfilled its duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Legal Criteria, Factual Background, and Analysis As an initial matter, the Board notes it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the issue on appeal. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). If two disability evaluations are potentially applicable, 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 (2017). All reasonable doubt as to the degree of the disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). As an initial matter, the Board notes that the effective date of an award of increased compensation is the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. §§ 5110(b)(2) (2012); 38 C.F.R. § 3.400(o)(2) (2017); see also Hazan v. Gober, 10 Vet. App. 511 (1997). In this case, the Veteran's request for an increased rating for his hiatal hernia was received on or around September 5, 2007. A review of the Veteran's medical records for the year preceding that date do not show that, at any point within that one year period, it was objectively shown or factually ascertainable that an increase in the Veteran's disability occurred. Therefore, the focus of this decision will be on the body of evidence added to the record subsequent to the Veteran's September 2007 claim for increase. The Veteran's service-connected hiatal hernia is currently rated at 10 percent under Diagnostic Code 7346. 38 C.F.R. § 4.114 (2017). The Veteran is seeking a rating in excess of 10 percent for his disability. As explained below, based on a review of the evidence, the Board has determined that a rating in excess of 10 percent for the Veteran's service-connected hiatal hernia is not warranted. Under Diagnostic Code 7346, for hiatal hernia, a 60 percent evaluation is assigned for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of sever impairment of health. A 30 percent evaluation is assigned for symptoms of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 10 percent evaluation is assigned with two or more of the symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114, Diagnostic Code 7346 (2017). Under 38 C.F.R. § 4.112, "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two-year-period preceding onset of the disease. 38 C.F.R. § 4.112 (2017). Dysphagia is defined as difficulty in swallowing. 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. In March 2008, the Veteran was afforded a VA examination. The Veteran reported that he was diagnosed with hiatal hernia. The VA examiner noted that the condition affected general body health due to symptoms of acid reflex, diarrhea, and nausea. The VA examiner reported that the condition affected the Veteran's body weight, in which he lost about 25 pounds within a 6 month period. The examiner noted that the Veteran did not seek treatment for the weight change. He reported that symptoms included dysphagia, heartburn, epigastric pain, passing black-tarry stools, reflux and regurgitation of stomach contents, nausea, and vomiting, which occurred constantly. The VA examiner reported that the Veteran did not have scapular pain, arm pain, or hematemesis, and was never hospitalized nor had surgery for his hiatal hernia condition. The VA examiner found that the Veteran's hiatal hernia caused significant anemia as noted from an abnormal blood test; however, there were no findings of malnutrition. In his notice of disagreement submitted in August 2008, the Veteran stated that he had severe heart burn and problems sleeping, and the medicine he took did very little to relieve the pain. The Veteran stated that he told the doctor about his arm pain and nausea. In January 2010 on his VA Form 9, substantive appeal, the Veteran stated that he believed he needed an increase for his disability because he had stomach pain, arm and shoulder pain, acid reflux, nausea, and was vomiting. The Veteran asserted that the medicine he was taking did not help. In May 2009, VA treatment records showed that during a gastrointestinal and nutritional assessment, the Veteran did not have nausea, vomiting, or constipation. It was noted that the Veteran's bowel movements were normal. A January 2012 emergency department note revealed that the Veteran did not have gastrointestinal issues. In January 2013, the Veteran denied having diarrhea, heartburn, nausea, vomiting, and bloody stools. The Veteran was afforded a VA examination in October 2014. Upon examination, the Veteran reported that the developed left arm pain about once per week. The Veteran stated he developed black film that coated the tongue in the morning about twice per week. He reported taking medication about once per week as treatment for hiatal hernia with associated symptoms, and that he had indigestion, with burning sensation in the sternum, a few times per week, usually after eating beef. The Veteran stated that he experienced vomiting about twice per week with no triggers. The Veteran reported that he had substernal chest pain about once per week which occurred usually when indigestion symptoms happened. Further, the Veteran stated that he took medicine, Pepto-Bismol, to sooth the indigestion symptoms with relief of symptoms. The VA examiner noted that the Veteran had persistently recurrent epigastric distress, substernal arm pain, and vomiting that occurred four or more times per year and lasted less than one day. The VA examiner also noted that the Veteran took medication once per day as treatment for hiatal hernia with associated symptoms. The Veteran did not have esophageal stricture, spasm of the esophagus, or an acquired diverticulum of the esophagus. The VA examiner concluded that the Veteran's esophageal conditions did not impact his ability to work. In October 2014, the Veteran submitted a statement asserting that he had developed acid reflux, arm pain, and "blood on [his] tongue." VA treatment records show that from October 2014 to May 2016, the record, for the majority of the time, was silent for reports of nausea, vomiting, diarrhea, and constipation. There were also no reports of hematemesis, or melena with anemia during that period. However, in November 2014, the Veteran complained that he had heartburn despite taking a medicine called Omeprazole; his heartburn developed since October. In a November 2015 follow-up visit for diabetes and hypercalcemia, it was noted that the Veteran did not have abdominal pain, dark or bloody stools, nausea, vomiting, or diarrhea. The Veteran was afforded a VA examination in May 2016. The Veteran reported that he had acid reflux, which felt like a burning in his chest. The Veteran reported that he felt bloated, and he sometimes would wake up with a "black tongue". The Veteran had arm and shoulder pain when he had acid reflux. He stated that he had nausea in the mornings, which occurred about twice a week. The Veteran stated that he would vomit if he drank something in the morning. The Veteran continuously took Omeprazole to help for his symptoms. The Veteran further stated that beef and spicy foods, like spaghetti sauce, gave him acid reflux. The VA examiner noted that the Veteran was eating potato chips and drinking soda during the interview, but it did not bother him. The VA examiner noted that other symptoms reported by the Veteran included reflux, regurgitation, pain in the arm and shoulder, nausea, and vomiting. Episodes of nausea and vomiting occurred four or more times per year, but lasted less than one day. The VA examiner concluded that the Veteran's esophageal conditions did not impact his ability to work. From May 2016 to December 2016, VA treatment records were lacking for complaints of vomiting, nausea, constipation, hematemesis, or melena. However, in January 2017, the Veteran visited the emergency department because he was coughing up blood. The Veteran reported bleeding, constipation, and having a little blood in his stool. However, the Veteran denied bright red or black stool. Upon examination, his stools were normal. In June 2017, the Veteran was afforded a VA examination. The Veteran was diagnosed with hiatal hernia. The Veteran complained that he had symptoms mainly in the morning when he woke up. Sometimes the Veteran would wake up with a "black tongue". The Veteran reported that he recently had burning and reflux about twice a week. The Veteran reported that he had left arm and shoulder pain when he had acid reflux. He reported some nausea and reflux, but very small amounts. The Veteran denied vomiting and having any weight loss. The Veteran indicated that he took 20 mg of Omeprazole continuously for his symptoms. His medication gave him relief from the pain a couple of times a week, especially if he ate spicy foods or spaghetti. The Veteran stated that if he avoided spicy foods, then he would do fairly well. There were not any changes in his medications or severity of symptoms. The VA examiner noted that the Veteran had infrequent episodes of gastric distress, pyrosis, reflux, regurgitation, substernal arm and shoulder pain, and nausea. Episodes of nausea occurred four or more times per year, but lasted less than one day. The VA examiner noted that the Veteran did not have an esophageal stricture, spasm of esophagus, or an acquired diverticulum of the esophagus; the Veteran did not have any other symptoms related to his diagnosis. The VA examiner concluded that the Veteran's esophageal conditions did not impact his ability to work, and that the severity of the Veteran's symptomatology was not productive of considerable impairment of his health. Based on the evidence of record, a rating in excess of 10 percent for the Veteran's service-connected hiatal hernia has not been warranted at any time during the period on appeal. Based on the VA examinations, it is clear that the Veteran's hiatal hernia caused symptoms such as epigastric distress, heartburn, regurgitation of stomach contents, acid reflux, and arm and shoulder pain. It may also be inferred from the Veteran's statements that he has had some instances of nausea and vomiting due to his condition. The Board acknowledges that the Veteran is competent to report observable symptoms he believes that he has due to his disability. Layno v. Brown, 6 Vet. App. 465 (1994). However, his statements regarding the nature, frequency, and severity of the symptoms he experiences due to his hiatal hernia are not credible because they are not consistent with the medical evidence of record, and are therefore of reduced probative value. For example, in October 2014, the Veteran reported vomiting twice per week; in a January 2010 statement, the Veteran reported that he had vomiting and nausea; and in an October 2014 examination, it was reported that the Veteran had persistent recurrent epigastric distress. However, VA treatment records clearly show that the Veteran's symptoms were not persistent. This is also supported by the June 2017 VA examiner who concluded that the Veteran's symptoms were infrequent and were not productive of considerable impairment of his health. During the June 2017 VA examination, the Veteran stated that his medicine gave him relief from pain, especially if he ate spicy foods or spaghetti. The Veteran stated that if he avoided those foods, he would do fairly well. In a May 2016 VA examination, the Veteran reported that his medicine helped with his symptoms. At the interview, however, the examiner noted that the Veteran was eating potato chips and drinking a soda, which the Veteran was unbothered by. This is further evidence that the Veteran's disability is not as severe as he claims it to be. In order for the Veteran to be rated at the next higher, 30 percent, rating for his disability, he would have to have persistent recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. See 38 C.F.R. § 4.114, Diagnostic Code 7346 (2017). It is clear that the Veteran's disability does not warrant a 30 percent evaluation or any higher evaluation. Thus, the Board finds a rating in excess of 10 percent is not warranted for the Veteran's hiatal hernia. Also, the Board has considered whether staged ratings are appropriate. Due to the fact that the level of severity of the Veteran's disability has as a whole remained constant, the Board does not find the need to assign a staged rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER A rating in excess of 10 percent for hiatal hernia is denied. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs