Citation Nr: 18149142 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 15-40 356 DATE: November 8, 2018 ORDER Entitlement to an initial 30 percent disability rating, but no higher, prior to September 22, 2016 for hiatal hernia with gastroesophageal reflux disease (hernia with GERD) is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 30 percent prior to September 22, 2016 and in excess of 60 percent thereafter for hernia with GERD is denied. Entitlement to an effective date earlier than September 22, 2016, for the award of a 50 percent disability rating for esophageal stricture is denied. REMANDED Entitlement to service connection for a skin disability, to include chloracne/cystic lesions (skin disability), is remanded. Entitlement to service connection for an eye disability, to include retinopathy and maculopathy (eye disability), is remanded. Entitlement to service connection for a heart disability, to include irregular heart beat and ischemic heart disease (heart disability), is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for peripheral neuropathy is remanded. FINDINGS OF FACT 1. Prior to September 22, 2016, the Veteran’s hernia with GERD was manifest by persistently recurrent epigastric distress, dysphasia, pyrosis, reflux, regurgitation, substernal arm and shoulder pain, sleep disturbances caused by esophageal reflux, nausea occasional vomiting, and heartburn, some of which are controlled, at least in part, by medication, productive of considerable impairment of health. 2. From September 22, 2016, the Veteran’s hernia with GERD is assigned a 60 percent disability rating, which is the maximum schedular rating under Diagnostic Code 7346. 3. A September 2015 rating decision granted service connection for esophageal stricture with an assigned 30 percent disability rating, effective June 29, 2011; the Veteran did not appeal this issue. 4. The Veteran underwent a VA esophageal conditions examination for hernia with GERD in September 2016 and the examination indicated a worsening of the Veteran’s service-connected esophageal stricture. 5. The Veteran submitted a correspondence regarding an increased rating for esophageal stricture in November 2016. CONCLUSIONS OF LAW 1. Prior to September 22, 2016, the criteria for a 30 percent rating, but no higher, for GERD have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.114, Diagnostic Codes 7399-7346. 2. From September 22, 2016, the criteria for a disability rating in excess of 60 percent for GERD have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.114, Diagnostic Codes 7399-7346. 3. The criteria for an effective date for an award of a 50 percent evaluation for esophageal stricture, prior September 22, 2016, have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.157, 3.400(o)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017). Evaluation of a service-connected disability requires a review of a veteran’s medical history with regard to that disorder. However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where a veteran appeals the initial rating assigned for a disability, evidence contemporaneous with the claim and the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” See Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial disability rating in excess of 10 percent prior to September 22, 2016 and in excess of 60 percent thereafter for hernia with GERD The Veteran’s hernia with GERD has been evaluated as 10 percent disabling prior to September 22, 2016 and as 60 percent disabling from September 22, 2016 under 38 C.F.R. § 4.114, Diagnostic Codes 7399-7346. Diagnostic Code 7399 refers to disabilities of the digestive system, while Diagnostic Code 7346 refers to hiatal hernia. GERD is not listed in the rating schedule. In this case, the Board finds the use of the hyphenated Diagnostic Code 7399-7346 to be appropriate as the Veteran’s GERD symptoms are more closely captured by those listed under Diagnostic Code 7346. Under Diagnostic Code 7346, a 10 percent rating is warranted for disability manifested by two or more of the symptoms for the 30 percent rating of less severity. A 30 percent rating is contemplated for persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, causing considerable impairment of health. The maximum 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. 38 C.F.R. § 4.114, Diagnostic Code 7346. Prior to September 22, 2016 Post-service VA treatment records show that the Veteran was diagnosed with dysphasia in 2011 and first prescribed Nexium for his hernia GERD in 2014. During a June 2015 VA esophageal conditions examination, the Veteran reported symptoms of bad breath, burping, chest pains radiating to the arms, shoulders and back; dry cough at night; heartburn; regurgitation; hoarseness; nausea with vomiting and difficulty swallowing foods with water. The VA examiner noted that the Veteran’s symptoms due to his hernia with GERD were persistently recurrent epigastric distress, dysphasia, pyrosis, reflux, regurgitation, substernal arm and shoulder pain, sleep disturbances caused by esophageal reflux, nausea, occasional vomiting, and heartburn. The VA examiner noted that the Veteran’s hernia with GERD was treated with Nexium and Gaviscon. The VA examiner also noted that the Veteran had a moderate esophageal stricture. The Veteran underwent another VA examination in September 2016. During this examination, the VA examiner noted that the Veteran’s hernia with GERD was manifest by dysphagia, regurgitation, substernal arm and shoulder pain, sleep disturbances caused by esophageal reflux, recurrent nausea, vomiting, melena with moderate anemia, and material weight loss (36 pounds). The VA examiner noted that the Veteran had severe esophageal stricture and determined that the esophageal conditions impact the Veteran’s ability to work. Based on the medical evidence, the Board finds that an initial 30 percent rating prior September 22, 2016 is warranted for GERD as the Veteran’s symptomatology approximately equates to a considerable impairment of health considering the ameliorative effects of medication used to treat the Veteran’s hernia with GERD. See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012 (ameliorative effect of medication not to be considered if not contemplated by rating criteria). However, a higher 60 percent rating is not warranted for the period prior to September 22, 2016. Even though the Veteran experienced vomiting and pain, the other symptoms of this more severe level, such as material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health, have not been reported by the Veteran or noted in the medical evidence. Further, no other diagnostic code provides for a higher rating based on the evidence of record. From September 22, 2016 A 60 percent disability rating represents the maximum schedular rating available under the schedular criteria of Diagnostic Code 7346. For the appeal period from September 22, 2016, forward, the Veteran is receiving the maximum allowable schedular disability rating under Diagnostic Code 7346; therefore, a higher schedular rating for the service-connected hernia with GERD may not be granted under Diagnostic Code 7346. Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). The Board notes that it considered whether a separate compensable disability rating was warranted for the Veteran’s anemia associated with hernia with GERD. However, based on Diagnostic Code 7700, the Veteran’s hemoglobin count of 15.7 does not warrant a separate compensable disability rating. 2. Entitlement to an earlier effective date for the award of a 50 percent disability rating prior to September 2, 2016 for esophageal stricture The Veteran contends that the award of the 50 percent disability rating is warranted prior to September 2, 2016. The weight of the evidence indicates that the Veteran is not entitled to an earlier effective date. Generally, the effective date for an award of service connection and disability compensation is the day following separation from active service, or the date entitlement arose if the claim is received within one year after separation from service; otherwise, for an award based on an original claim, a claim reopened after a final allowance, or a claim for an increase, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Under applicable laws and regulations, if an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. 5110 (b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). In making this determination, the Board must consider all of the evidence, including that received prior to previous final decisions. Hazan v. Gober, 10 Vet. App. 511 (1997 Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments implement the concept of intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant’s effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1 (p), 3.151, 3.155. The amendments apply to claims filed on or after March 24, 2015. The Veteran submitted a November 2015 correspondence appearing to raise the issue of an increased evaluation for esophageal stricture. Therefore, the question before the Board is whether VA received any correspondence prior to March 24, 2015 that can be construed as an informal claim for an increased rating for esophageal stricture. The Board finds that it did not. In June 2011, the Veteran filed a claim for service connection for esophageal stricture, and, in September 2015, the RO granted service connection and assigned a disability rating of 30 percent effective the date the claim was received. The Veteran did not challenge his initial disability rating and the rating decision became final on September 17, 2016. The Veteran appealed his rating for hernia with GERD, and as development for that claim, the Veteran was afforded a VA examination in September 2016. The Veteran subsequently submitted a statement regarding an increased rating for esophageal stricture in November 2016. In January 2017, the RO increased the Veteran’s disability rating for esophageal stricture to 50 percent effective September 22, 2016, the date of the VA examination. This examination is over a year after the issuance of the September 2015 rating decision. The Veteran appealed, indicating that the 50 percent rating should be awarded effective the date of the original claim for service connection in 2011. The September 2016 VA examiner noted the Veteran’s frequent dilations and indicated that the Veteran has a severe esophageal stricture that is amenable to dilation. The examiner further indicated that the “Veteran has a Schatzki’s ring that requires frequent dilatation otherwise the Veteran has difficulty swallowing solids and liquids.” She did not check the box that states that the Veteran’s esophageal stricture permitted liquids only. As noted above, the effective date of an increased disability rating is the date that the entitlement arose or the date of claim (whichever came later); unless it is factually ascertainable that entitlement arose within one year earlier than the date of receipt of the claim for increase. 38 C.F.R. § 3.400. In this case, the VA did not receive an informal claim for increase for esophageal stricture prior to March 24, 2015 or an actual claim for increase for esophageal stricture after March 24, 2015. The Board has considered whether the evidence shows that the esophageal stricture warrants a higher rating prior to September 22, 2016 as the stricture is related to the hernia with GERD. However, a review of the private and VA treatment records does not show that a higher 50 percent rating is warranted as the evidence does not show that the esophageal stricture was severe, permitting liquids only. The Board notes the Veteran’s contention (in his November 2016 correspondence) that the rating should be adjusted because it is noted that he has “difficulty swallowing solids and liquids”; however, difficulty swallowing solids and liquids does not indicate that the esophageal stricture only permitted liquids. Therefore, Board finds that the effective date of September 22, 2016, the date that the VA examination indicated the Veteran’s esophageal stricture warranted a higher rating, is adequate. The weight of the probative evidence does not demonstrate that the Veteran is entitled to an effective date earlier than September 22, 2016 for esophageal stricture. REASONS FOR REMAND 1. Entitlement to service connection for a skin disability, to include chloracne/cystic lesions (skin disability) is remanded. 2. Entitlement to service connection for an eye disability, to include retinopathy and maculopathy is remanded. 3. Entitlement to service connection for a heart disability, to include irregular heart beat and ischemic heart disease is remanded. 4. Entitlement to service connection for hypertension is remanded. 5. Entitlement to service connection for peripheral neuropathy is remanded. The Veteran seeks entitlement to service connection for a skin disability, entitlement to service connection for an eye disability, entitlement to service connection for a heart disability, entitlement to service connection for hypertension, and entitlement to service connection for peripheral neuropathy, all due to exposure to herbicides. The Board finds that due process and evidentiary concerns render it necessary to remand the claims. In this regard, the Veteran has alleged exposure to Agent Orange and indicated that his service includes that at Camp Casey and in the DMZ in Korea. Although VA issued September 2014 and June 2015 Memoranda of a Formal Finding that sufficient information required to verify exposure to herbicides, further development is necessary. It does not appear that VA attempted to verify the Veteran’s units and their locations. September 2013 correspondence from the Joint Services Records Research Center (JSRRC) to the Veteran indicates that requests for unit records should be sent to National Archives and Records Administration (NARA) in College Park, Maryland; however, it does not appear that a request was sent. Additionally, neither memorandum appears to factor in the Veteran’s duties while in Korea which are noted in the service personnel records to have included Hawk Missile Crewman when it concluded that service in the DMZ/Agent Orange exposure could not be conceded for the Veteran. The matters are REMANDED for the following action: 1. Request unit records and history, to include trip logs and unit locations for the Veteran and his assigned units from the NARA, the National Personnel Records Center (NPRC) and any other appropriate agency. Make as many requests as necessary to obtain the records. If it is determined that the records do not exist or that further attempts to obtain the records would be futile, a formal finding should be entered into the record and the Veteran should be notified and provided the opportunity to obtain and submit the evidence. 2. Upon completion of directive #1, attempt to verify, including with the JSRRC, the Veteran’s claimed exposure to herbicides in Korea. The Veteran’s specific unit information with duties of Hawk Missile Crewman should be provided with the request to the JSRRC, along with his contentions of having been stationed at Camp Casey during this time.   3. Thereafter, based on the above determination, complete any other necessary development, to include obtaining any necessary VA examinations (only if needed). Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel