Citation Nr: 1742769 Decision Date: 09/27/17 Archive Date: 10/04/17 DOCKET NO. 15-25 724 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to a rating in excess of 10 percent for post-operative hiatal hernia with esophageal stricture. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1962 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) from an August 2014 and May 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Board notes that the Veteran's initially appealed service connection claims for upper and lower bilateral peripheral neuropathy; however, in his VA Form 9, the Veteran specifically indicated that he intends to pursue his appeal only for the issue of entitlement to a rating in excess of 10 percent for his post-operative hiatal hernia. Accordingly, all other issues have been withdrawn and this is the only issue that remains on appeal. The United States Court of Appeals for Veterans Claims (Court) has held that a request for TDIU is part and parcel of a higher rating when raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The record does not indicate that the Veteran alleged, and the evidence does not show, that he is unemployable due to the service-connected healed scar disability. Therefore, the issue of entitlement to a TDIU rating has not been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT 1. Throughout the appeal period, the weight of the evidence supports a finding that the Veteran's post-operative hiatal hernia has resulted in persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain productive of considerable impairment of health. 2. Symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health have not been demonstrated. 3. The Veteran has an esophageal stricture, which is associated with his hiatal hernia, and is productive of moderate symptoms at worst, consisting of recurrent intermittent spasms. CONCLUSIONS OF LAW 1. Resolving any reasonable doubt in the Veteran's favor, throughout the appeal period, the criteria for a 30 percent rating, but no higher, for post-operative hiatal hernia have been approximated. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.114, DC 7346 (2016). 2. Resolving any reasonable doubt in the Veteran's favor, throughout the appeal period, the criteria for a 30 percent rating, but no higher, for esophageal stricture have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.114, DC 7203 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In light of the favorable action taken herein, the Board finds that further discussion of the Veterans Claims Assistance Act of 2000 (VCAA) is not required at this time. Increase Rating - Applicable Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, 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 (2016). Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14 (2016). It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). As applicable here, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Applicable here, where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through their senses. See Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Analysis The Veteran has been service-connected for post-operative hiatal hernia at 10 percent disabling pursuant to 38 C.F.R. § 4.114, DC 7346 since July 1988. He subsequently developed an esophageal stricture, which was included as a part of the service-connected disability. In June 2013, he submitted a claim for increase. Under DC 7346, a 10 percent rating is warranted where hiatal hernia manifests with two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is warranted for hiatal hernia that manifests as persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The highest schedular rating of 60 percent rating under such code 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. 38 C.F.R. § 4.114. Private medical treatment notes from Family Medicine dated in June 2012 note that the Veteran experienced esophageal spasms that vary in frequency from 1 to 2 times a week despite avoiding some foods. In his October 2014 Notice of Disagreement (NOD), the Veteran indicated that his hiatal hernia surgery caused him severe dysphagia/pyrosis to the point where he was unable to eat enough food to maintain his weight and normal energy levels. He further noted that he must he very slowly and small amounts over an extended period of time to keep from vomiting during the meal. In April 2015, the Veteran underwent a VA examination to determine the severity of his post-operative hiatal hernia symptoms. The examiner noted diagnoses of hiatal hernia repair and esophageal stricture. The Veteran reported that he was taking Prilosec regularly that only "helps a little." He further noted that he had difficulty swallowing, odynophagia, indigestion, and food was occasionally getting stuck in his esophagus, which caused him pain. The examiner noted that the Veteran had symptoms of dysphagia and pyrosis but had no spasm. However, the examiner indicated that the Veteran blood work showed anemia and noted that this condition slowed the Veteran and prevented him from eating certain foods. In June 2015, the Veteran submitted a statement from his private physician indicating that he had a transthoracic hiatal hernia repair in 1973 and had episodes of considerable intense spasms while swallowing food that can last ten to twenty minutes. The physician added that this condition "very much affects his lifestyle and makes eating away from his home very stressful as he never knows when his esophageal spasms will occur." On his July 2015 VA Form 9, the Veteran indicated that his symptoms should warrant him a 60 percent disability rating. He indicated that he had pain, vomiting, material weight loss (noted that he weighs 158 pounds and is 6 feet 1 inch tall), hematemesis with vomiting often, and moderate anemia. He further indicated that he had symptoms of dysphagia, regurgitation, and substernal pain in his shoulder. In January 2016, the Veteran underwent an additional VA examination. The examiner noted diagnoses of GERD, hiatal hernia, esophageal stricture, and esophageal spasm. The Veteran reported dysphagia and persistent reflux and vomiting prior to his surgery and esophagus spasms on and off during eating. Upon examination, the examiner noted symptoms of persistent recurring epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal arm or shoulder pain, anemia, weight loss, transient nausea once a year and less than one day at the time, and recurrent vomiting four or more times a year. In addition, it was noted that the Veteran's spasms lasted less than a day and were mild in nature. With regards to the Veteran's anemia, the examiner acknowledged that the Veteran was diagnosed with mild anemia based on blood count, but noted that the most recent lab results were normal for an 86 year old man. Based on this body of evidence, the Board finds that the Veteran's hiatal hernia had symptoms of recurrent epigastric distress with dysphagia, pyrosis, and regurgitation accompanied by substernal shoulder pain productive of considerable impairment of health, which warrants a 30 percent disability rating under DC 7346. However, a rating higher than 30 percent under DC 7346 is not warranted for hiatal hernia. The next-higher rating of 60 percent requires symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Further, the Board notes that "material weight loss" is not defined under DC 7346; however, "substantial weight loss" is defined under 38 C.F.R. 4.112 as a loss greater than 20 percent of the individual's baseline weight, sustained for three months or longer, and "minor weight loss" is defined as weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. As noted, the Veteran is 6 feet 1 inch tall and throughout the pendency of this appeal, his weight dropped from 173 pounds to 158 pounds. Therefore, using the definition provided under 38 C.F.R. § 4.112 by analogy, the Veteran's weight loss of approximately 15 pounds is not considered substantial or material. Moreover, while the competent medical evidence dated during the appeal period indicates that the Veteran's anemia has been no worse than mild in nature, the most recent laboratory results, as reviewed by the January 2016 examiner, are normal for a man of the Veteran's age. Under DC 7346, medical evidence showing moderate anemia is required and there is no indication of such in the Veteran's claims file. The Veteran is competent to report observable symptoms of his hiatal hernia, such as vomiting, pain, or loss of weight, he, as a layperson, is not competent to render an opinion as to the severity of his anemia or weight loss, as those must be answered by medical professionals and clinical testing. For these reasons, an even higher rating of 60 percent for hiatal hernia under DC 7346 is not warranted. Next, the Board observes that the RO has encompassed the esophageal stricture as a part of the hiatal hernia disability. However, the Board finds that a separate disability rating is warranted for the esophageal stricture for the period on appeal. The January 2016 VA examiner specifically indicated that the esophageal stricture is now a separate diagnosis from the hiatal hernia. Specifically, the examiner noted that while the stricture was resolved post-surgery, "intermittent spasm continues." The competent evidence further shows that the Veteran's intermittent spasms prevent him from eating outside and are triggered by different foods. The Veteran's private doctor noted esophageal spasms as early as June 2012. The Board resolves any doubt in favor of the Veteran, and concludes that the Veteran's symptoms of stricture have approximated moderate disability during the period on appeal, and as such a separate 30 percent disability rating under DC 7203 is warranted. A higher rating of 50 percent under DC 7203 is however not warranted, as there is entirely no evidence showing a severe stricture condition which permits liquids only, as required under DC 7203. Finally, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 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 For the entire period on appeal, a 30 percent rating, but no higher, is assigned for post-operative hiatal hernia, subject to the laws and regulations governing monetary benefits. For the entire period on appeal, a separate 30 percent rating, but no higher, for esophageal stricture, associated with post-operative hiatal hernia, is granted, subject to the laws and regulations governing monetary benefits. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs