Citation Nr: 1800072	
Decision Date: 01/03/18    Archive Date: 01/19/18

DOCKET NO.  16-54 215	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1.  Entitlement to a rating in excess of 10 percent for gastroesophageal reflux disease (GERD) with a hiatal hernia. 

2.  Entitlement to service connection for emphysema. 

3.  Entitlement to service connection for obstructive sleep apnea (OSA).

4.  Entitlement to service connection for a chronic disability manifested by a persistent cough other than emphysema (claimed as bronchitis).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans




WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Riley, Counsel 


INTRODUCTION

The Veteran served on active duty from June 1959 to June 1980.  This case comes before the Board of Veterans' Appeals (Board) on appeal from November 2014 and January 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  

The Veteran testified before the undersigned Veterans Law Judge (VLJ) at the RO in October 2017.  A transcript of the hearing is included in the claims file.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The claim for a chronic disability manifested by a persistent cough other than emphysema is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran's GERD manifests persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation with substernal pain.


2.  The Veteran's emphysema is etiologically related to active duty service. 

3.  The Veteran's OSA is etiologically related to active duty service.


CONCLUSIONS OF LAW

1.  The criteria for a 30 percent rating, but not higher, for GERD with a hiatal hernia are met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.114, Diagnostic Code 7346 (2017).

2.  Service connection for emphysema is warranted.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.

3.  Service connection for OSA is warranted.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).


Increased Rating for GERD

Service connection for a hiatal hernia was granted in a January 1982 rating decision with an initial 10 percent evaluation assigned effective September 22, 1981.  Service connection for GERD was awarded in the January 2016 rating decision on appeal, and the condition was rated as part of the previously service-connected hiatal hernia.  The Veteran's gastrointestinal disability is therefore currently characterized as GERD with a hiatal hernia and rated as 10 percent disabling.
In a September 2016 notice of disagreement (NOD), the Veteran stated that a 30 percent rating would satisfy his appeal for an increased rating for GERD.  A claimant is generally presumed to be seeking the maximum evaluation available under law.  AB v. Brown, 6 Vet. App. 35, 39 (1993).  However, a claimant can choose to limit the appeal for a claim for less than the maximum rating.  See Id at 35.  As discussed in the decision below, the Board has determined that the Veteran's GERD with a hiatal hernia most nearly approximates the criteria associated with a 30 percent evaluation.  In light of the Veteran's statement limiting the scope of the increased rating appeal, this decision constitutes a complete grant of the benefits sought on appeal.

The Veteran's GERD with a hiatal hernia is currently rated as 10 percent disabling under 38 C.F.R. § 4.114, Diagnostic Code 7346 for hiatal hernia.  Under Diagnostic Code 7346, a 10 percent evaluation is assigned when the there are two or more of the symptoms for the 30 percent rating, of less severity.  A 30 percent rating is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal arm or shoulder pain, productive of considerable impairment of health.  38 C.F.R. § 4.114, Diagnostic Code 7346 (2017).

The medical and lay evidence establishes that the Veteran manifests a large hiatal hernia and GERD with symptoms of pyrosis, reflux, regurgitation, and substernal pain.  A July 2014 private X-ray demonstrated a "massive hiatal hernia" with a possible bowel obstruction.  A similar finding was made by the Veteran's private physician in August 2016, when a recent CT demonstrated a "huge hiatal hernia" in the Veteran's chest.  Upon VA examination in November 2015, the Veteran was found to have used a proton pump inhibitor since 1985 with current symptoms of vocal hoarseness, pyrosis, reflux, regurgitation, substernal pain, and sleep disturbance caused by esophageal reflux.  The Veteran also reported experiencing a recurrence of symptoms four or more times per year.  The Veteran testified before the Board in October 2017 that he experienced heartburn three to four times a night, regurgitation, and substernal and arm pain with overeating.  The symptoms reported by the Veteran and documented by his physicians are consistent with a 30 percent evaluation under Diagnostic Code 7346 and the Board finds that a full grant of 30 percent for GERD with a hiatal hernia throughout the claims period is warranted.


Service Connection Claims

The Board finds that service connection is warranted for the Veteran's emphysema and OSA as the disabilities were incurred due to active military service.  Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  

The record establishes the presence of the claimed disabilities; post-service VA and private medical records document findings of emphysema (also described as chronic obstructive pulmonary disease (COPD)).  The conditions were also diagnosed upon VA examinations in October 2014.

In-service injuries are also present.  Service records show that the Veteran was treated on multiple occasions for a persistent cough and production of yellow phlegm.  The record also contains a February 2014 statement from one of the Veteran's friends during service, stating that the Veteran often snored loudly and manifested inconsistent breathing while sleeping during active duty.  The Board therefore finds that in-service injuries are established.  

The Board additionally finds that the record demonstrates a link between the Veteran's emphysema, OSA, and active duty service.  Private physicians provided statements in support of the claims in July 2014, August 2014, and November 2015.  These statements were based on a review of the Veteran's service records, an accurate history of his symptoms, and were accompanied by well-explained rationales.  A VA examiner provided a medical opinion against service connection in a November 2014 examination addendum report, but the Board finds this opinion is outweighed by the evidence weighing in favor of the claims.  Therefore, all the elements necessary for establishing service connection are met and the claims are granted.  See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).   

ORDER

Entitlement to a 30 percent rating, but not higher, for GERD with a hiatal hernia is granted.

Entitlement to service connection for emphysema is granted. 

Entitlement to service connection for OSA is granted.


REMAND

The Board finds that a remand is necessary to determine whether the Veteran manifests a chronic disability manifested by a persistent cough other than the now service-connected emphysema, to include whether the cough is related to service-connected GERD with a hiatal hernia.  To this end, the Board should be provided a VA examination and medical opinion addressing this specific question.  

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Obtain the Veteran's complete VA medical records dating from May 28, 2014 to the present.  

2.  Contact the Veteran and request that he execute proper release forms to authorize VA to obtain records from any private physicians/facilities that have treated a disability manifested by a persistent cough other than emphysema (claimed as bronchitis), to include Dr. Edwin Yorobe, the Veteran's primary care physician.

If proper medical release forms are received, obtain copies of all available treatment records from Dr. Yorobe and any others identified by the Veteran.  Copies of the records must be associated with the claims file.  All efforts to obtain the records must be documented in the claims file.  

3.  Schedule the Veteran for a VA examination to determine the nature and etiology of a disability manifested by a persistent cough other than emphysema (claimed as bronchitis).  The claims file must be made available to and reviewed by the examiner.

The examiner should:

a)  Determine whether the Veteran manifests a disability manifested by a persistent cough (to include bronchitis) that is separate and distinct from the service-connected emphysema; and, if so,

b)  Determine whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the disability manifested by a persistent cough is etiologically related to the Veteran's complaints or a cough during active duty or caused or aggravated by service-connected GERD.  The examiner must address the aggravation aspect of the claim.

The complete bases for all medical opinions must be provided.  The current record before the Board does not document treatment or a diagnosis of bronchitis other than in a November 2015 letter from the Veteran's private primary care doctor.  The private doctor found that the Veteran's bronchitis was related to active duty service and the Veteran's in-service treatment for a persistent cough.  The Veteran also contends that he manifests a chronic cough associated with service-connected GERD with a hiatal hernia.

4.  After completion of the above, readjudicate the claim on appeal.  If the benefit sought on appeal is not fully granted, issue a SSOC before returning the case to the Board, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



______________________________________________
M. H. Hawley
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs