Citation Nr: 18150366 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-50 447 DATE: November 15, 2018 ORDER Entitlement to a rating in excess of 30 percent for a hiatal hernia disability is denied. FINDING OF FACT The Veteran has not experienced material weight loss, hematemesis, melena, anemia or by other symptom combinations productive of severe impairment of health due to her service-connected hiatal hernia disability. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for hiatal hernia, status post Nissen fundoplication with residual scar have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7346 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1987 to May 2010. This appeal comes to the Board of Veterans’ Appeals (Board) from a January 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board also acknowledges that a July 2017 rating decision in part, denied a compensable rating for epicondylitis of the right elbow (limitation of extension), denied a rating in excess of 10 percent for epicondylitis of the right elbow (limitation of flexion), decreased from a 30 percent rating to a 10 percent rating for epicondylitis of the right elbow (limitation of supination and pronation) for the period since July 21, 2017 and denied a compensable evaluation for surgical scars of the left knee. In her September 2017 notice of disagreement (NOD), the Veteran indicated that she disagreed with these specific issues decided in the May 2015 rating decision. Accordingly, in February 2018, the RO issued a statement of the case (SOC) which addressed these 4 issues. However, the Veteran failed to file a substantive appeal in response to the February 2018 SOC. Additionally, these issues have not been certified. As a result, despite the Veteran’s representative’s July 2018 Appellant’s Brief Presentation listing these 4 issues from the July 2017 rating decision, the only issue currently on appeal is the one listed on the title page as this is currently the only issue that has been perfected. As a result, the issues of entitlement to a compensable rating for epicondylitis of the right elbow (limitation of extension); entitlement to a rating in excess of 10 percent for epicondylitis of the right elbow (limitation of flexion); entitlement to a rating in excess of 10 percent for epicondylitis of the right elbow (limitation of supination and pronation) for the period since July 21, 2017 and entitlement to a compensable evaluation for surgical scars of the left knee have not been perfected and are not currently before the Board. A review of the Veteran’s claims file shows that she filed a request for waiver of overpayment with the Agency of Original Jurisdiction (AOJ) in September 2018. To date, however, the AOJ has not taken any action on this request. Accordingly, the Veteran’s request for waiver of overpayment is referred to the AOJ for appropriate action. 1. Increased Rating for Hiatal Hernia Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2017). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2017). 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 disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two 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 (2017). In this case, the Veteran is competent to testify on factual matters of which she has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). She is also competent to report symptoms of her hiatal hernia. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe her symptoms and their effects on employment or daily activities. Her statements have been consistent with the medical evidence of record, and are probative for resolving the matter on appeal. The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. A July 2010 rating decision granted service connection for hiatal hernia at an initial 30 percent disability rating, effective May 29, 2010 under Diagnostic Code 7346. Under Diagnostic Code 7346, a 10 percent rating is warranted for a hiatal hernia with two or more of the symptoms required for a 30 percent rating which are of lesser severity than is required for a 30 percent rating. A 30 percent rating requires persistently recurrent epigastric distress with dysphagia, pyrosis, dysphonia, and regurgitation accompanied by substernal, arm, or shoulder pain, which is productive of considerable impairment of health. A 60 percent rating 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. 38 C.F.R. § 4.114. Disability ratings assigned under Diagnostic Codes 7301 to 7329 (inclusive), 7331, 7342, and 7345 to 7348 (inclusive) will not be combined with each other. Instead, a single disability rating will be assigned under the diagnostic code which reflects the veteran’s predominant disability picture with elevation to the next higher rating where the severity of the overall disability warrants such elevation. 38 C.F.R. §4.114. Factual Background and Analysis The Veteran underwent a VA examination in November 2009. The examiner noted that the Veteran’s condition impacted her general body health as she had difficulty swallowing food. The condition did not affect body weight. The Veteran reported having dysphagia, heartburn, epigastric pain, reflux and regurgitation of stomach contents, nausea and vomiting. She had no scapular pain, arm pain, hematemesis or passing of black-tarry stools. Her described symptoms occurred intermittently and as often as twice a week while lasting an hour. She had 3 attacks in the last year. Her ability to perform daily functions during flare-ups was not impacted. She reported having never been hospitalized or undergone surgery for her hiatal hernia. She also reported that she did not experience any overall functional impairment from the condition. A September 2015 rating decision proposed to decrease the Veteran’s hiatal hernia disability from a 30 percent to a noncompensable evaluation. As a result of the proposed reduction, the Veteran underwent a VA examination in November 2015. The Veteran presented with complaints of epigastric tenderness, feelings of abdominal bloating, substernal burning and regurgitation. She stated that she woke up 3 times a week with these symptoms. Her symptoms included persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, pain, and sleep disturbance caused by esophageal reflux. These symptoms happened more than 4 times per year and lasted less than a day. She had nausea more than 4 times a year that lasted less than a day. She did not have an esophageal stricture, spasm or diverticula. The Veteran’s hiatal hernia did not impact her ability to work. November 2015 and January 2016 rating decisions continued the 30 percent disability evaluation for the Veteran’s service-connected hiatal hernia. On a July 2017 Disability Benefits Questionnaire (DBQ) for hernias, the Veteran reported that for the past 18 months she had experienced “terrible” reflux. The examiner noted that the Veteran had persistently recurrent epigastric distress, pyrosis, reflux, regurgitation and substernal pain. She had sleep disturbance that occurred more than 4 or more times a year but lasted less than a day. She did not have material weight loss. She had mild nausea that occurred more than 4 or more times a year but lasted less than a day. She did not have vomiting, hematemesis or melena with moderate anemia. She did not have an esophageal stricture, spasm or diverticula. The Veteran’s hiatal hernia did not impact her ability to work. Considering the pertinent facts in light of applicable rating criteria, the Board finds that an evaluation in excess of 30 percent is not warranted for the Veteran’s service-connected hiatal hernia disability. As noted above, a maximum rating of 60 percent is authorized for a hiatal hernia with symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia; or other symptom combinations productive of a severe impairment of health. See 38 C.F.R. § 4.114, Diagnostic Code 7346 (2017). However, the Board finds that based on the evidence of record, the medical evidence of record does not demonstrate that the Veteran has experienced material weight loss, hematemesis, melena, anemia or any other symptoms productive of severe impairment of health. Notably, the record demonstrates that the Veteran has not experienced any symptoms of material weight loss as evidenced by the VA examiners who specifically addressed these symptoms. Similarly, the examiners noted that there was no evidence of hematemesis or melena with moderate anemia or other symptom combinations productive of a severe impairment of health. Most recently, the July 2017 DBQ physician also found that the Veteran did not have symptoms productive of considerable impairment of health or combined symptoms productive of severe impairment of health. As the medical evidence of record does not demonstrate that the Veteran has experienced material weight loss, hematemesis, melena, anemia or any other symptoms productive of severe impairment of health, a rating in excess of 30 percent for a hiatal hernia disability is not warranted. (Continued on the next page)   Accordingly, as the preponderance of the evidence is against the claim for a rating in excess of 30 percent for a service-connected hiatal hernia disability, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). BISWAJIT CHATTERJEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James A. DeFrank, Counsel