Citation Nr: 18151857 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 11-23 548 DATE: November 20, 2018 ORDER An increased rating for a hiatal hernia, to include referral for extraschedular consideration, is denied. VETERAN’S CONTENTIONS The Veteran’s hiatal hernia is currently rated as 10 percent disabling throughout the claim period. He asserts that this rating does not accurately reflect the severity of his disability. Specifically, he contends that his hiatal hernia causes him occasional arm and shoulder pain, as well as occasional sleep disturbances. FINDINGS OF FACT 1. The Veteran’s hiatal hernia has been manifested by no more than infrequent epigastric distress, with dysphagia, pyrosis, reflux, substernal pain, and infrequent nausea and sleep disturbance. See April 2016 VA Examination. 2. The Veteran’s hiatal hernia has not produced marked interference with employment, frequent periods of hospitalization, or impairment of similar severity at any point throughout the claim period. See VA Examinations dated July 2009, April 2016. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for a hiatal hernia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7346. 2. The criteria for referral for extraschedular consideration are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.321(b)(1). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from March 1977 to December 1982. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In a July 2017 decision, the Board denied the Veteran’s claim for an initial rating in excess of 10 percent for a hiatal hernia. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2018 Order, the Court granted a joint motion for remand filed by the parties, vacating the portion of the Board’s July 2017 decision denying the Veteran’s increased rating claim, and remanding the issue for action consistent with the joint motion. As discussed below, the Board finds that an increased rating for hiatal hernia is not warranted, and referral is not warranted for consideration of an extraschedular rating, taking into consideration evidence that the Veteran’s hiatal hernia produces sleep disturbance. However, the Veteran is encouraged to file a claim for secondary service connection for sleep disturbance, these findings notwithstanding. Entitlement to a Schedular Rating in Excess of 10 Percent The Veteran’s hiatal hernia is rated under diagnostic code (DC) 7346. Under that code, a rating in excess of 10 percent requires persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. As noted in the above findings of fact, the Board finds that the Veteran’s hiatal hernia has been manifested by no more than infrequent epigastric distress, with dysphagia, pyrosis, reflux, substernal pain, and infrequent nausea and sleep disturbance throughout the claim period. Therefore, a schedular rating in excess of 10 percent is not warranted. The Veteran was afforded two VA examinations on his claim for an increased rating for a hiatal hernia. A July 2009 VA examination noted no current diagnosis of hiatal hernia, with less-than-weekly esophageal distress and pain. An upper gastrointestinal exam was normal, with a finding of minimal reflux. The examiner noted no history of nausea, vomiting, dysphagia, regurgitation, hematemesis, melena, weight loss, or malnutrition. An April 2016 VA examination yielded a diagnosis of hiatal hernia with infrequent epigastric distress, with dysphagia, pyrosis, reflux, substernal pain, and infrequent nausea and sleep disturbance. The examiner noted the Veteran’s nausea and sleep disturbance occurred four or more times per year. The Veteran’s VA treatment records support the disability picture reflected in the VA examinations. An April 2009 VA treatment record notes gastroesophageal reflux disease (GERD), stable without medication. A June 2010 record notes no dysphagia. A March 2013 record notes GERD, stable with medication. In short, there is no evidence throughout the claim period that the Veteran’s hiatal hernia has manifested in recurrent epigastric distress productive of considerable impairment of health. Rather, the evidence indicates that his disability has manifested in, at worst, infrequent epigastric distress, with the symptoms described above. Therefore, a schedular rating in excess of 10 percent for hiatal hernia is not warranted. Entitlement to Referral for Consideration of an Extraschedular Rating In its July 2017 decision denying a rating in excess of 10 percent for a hiatal hernia, the Board raised the issue of entitlement to referral for consideration of an extraschedular rating. As noted above, in its May 2018 order, the Court remanded the issue of entitlement to an increased rating for a hiatal hernia. The Court ordered the Board to take action “consistent with the terms of the joint motion,” which found that the Board failed to provide adequate reasons and bases for denying referral. As the parties stated in their joint motion for remand: [T]here is a three-step inquiry to determining whether an extraschedular rating should be granted. The first step is a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant’s disability level and symptomatology, the claimant’s disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. The second step in the process is necessary only if the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology, and is found inadequate. If that is the case, the board, or RO, must determine if the claimant’s exceptional disability picture exhibits such factors as ‘marked interference with employment,’ or ‘frequent periods of hospitalizations.’ In exceptional cases where the schedular rating is found to be inadequate, the Board may refer the veteran to the Chief Benefits Director for consideration of an extraschedular evaluation.” May 2018 Joint Motion for Remand (citing 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 115–116 (2007)) (internal citations omitted). The parties stated that although the Board raised the issue of referral for extraschedular consideration, it erred in failing to discuss the evidence that the Veteran’s hiatal hernia causes him sleep disturbances, an impairment not enumerated in the schedular criteria for hiatal hernia (DC 7346). Turning to the first, threshold step of the Thun analysis, the Board finds that the schedular criteria reasonably describe the Veteran’s disability level and symptomatology. The schedular criteria for a 30 percent rating contemplate symptoms productive of “considerable impairment of health.” In other words, the schedular criteria contemplate impairment beyond the symptoms of hiatal hernia, but which is nevertheless caused by it or its symptoms. This is precisely the kind of impairment presented by the Veteran’s sleep disturbance, and in evaluating his disability under the schedular criteria, the Board has taken it into consideration. Therefore, the Board finds that the Veteran’s impairment due to his hiatal hernia, to include his sleep disturbance, comprises a disability picture specifically and adequately contemplated by the schedular rating criteria. Accordingly, the threshold step of the Thun analysis has not been satisfied, and referral of this issue for consideration of an extraschedular analysis is not warranted. (CONTINUED ON NEXT PAGE) S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Timmerman, Associate Counsel