Citation Nr: 18154324 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 14-34 271A DATE: November 29, 2018 ORDER Entitlement to a rating in excess of 10 percent for hiatal hernia is denied. REMANDED Entitlement to service connection for uterine fibroids is remanded. Entitlement to service connection for allergic rhinitis is remanded. Entitlement to a compensable rating for variable anisocoria with intermittent right eye diplopia is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) is remanded. FINDING OF FACT For the entire period of claim, the Veteran’s hiatal hernia is shown to have been manifested by persistently recurrent epigastric distress with dysphagia and pyrosis; her hiatal hernia has not been manifested by regurgitation, substernal or arm or shoulder pain, vomiting, material weight loss, hematemesis, melena, or any other combination of symptoms to be productive of either considerable or severe impairment of health at any time during the evaluation period. CONCLUSION OF LAW A rating in excess of 10 percent for hiatal hernia is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code (DC) 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1978 to August 1998. In response to an August 2018 letter from the Board, the Veteran’s attorney (on the Veteran’s behalf) provided a waiver of initial Agency of Original Jurisdiction (AOJ) consideration in August 2018 with regard to all evidence received after the September 2014 statement of the case. See 38 C.F.R. § 20.1304. Entitlement to a rating in excess of 10 percent for hiatal hernia. Generally, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate “staged” ratings may be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s hiatal hernia is rated under DC 7346, which provides the following ratings for hiatal hernia. A 10 percent rating is warranted for the presence of two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 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, DC 7346. The Veteran filed the instant claim for an increased rating for her hiatal hernia in March 2010. Therefore, for purposes of this appeal, the evaluation period begins in March 2009 (i.e., one year prior to the date of claim). For the entire period of claim, the Veteran’s hiatal hernia is shown to have been manifested by persistently recurrent epigastric distress with dysphagia and pyrosis, as shown by the evidence of record (including VA and private treatment records, the report of a private upper endoscopy with dilation in April 2010, and the reports of VA esophagus examinations in June 2010 and July 2018). In addition, the aforementioned evidence of record shows that her hiatal hernia has not been manifested by regurgitation, substernal or arm or shoulder pain, vomiting, material weight loss, hematemesis, melena, or any other combination of symptoms to be productive of either considerable or severe impairment of health at any time during the evaluation period. Accordingly, the Board finds that a rating in excess of 10 percent for the Veteran’s hiatal hernia is not warranted at any time during the evaluation period. See 38 C.F.R. § 4.114, DC 7346; see also Francisco, 7 Vet. App. at 55, 58; see also Hart, 21 Vet. App. at 505. REASONS FOR REMAND 1. Entitlement to service connection for uterine fibroids. The Veteran contends that she had uterine fibroids during the appeal period (prior to undergoing an April 2011 hysterectomy) which began during her military service. She has also suggested that her uterine fibroids may have developed secondary to her service-connected hypothyroidism. The Veteran’s service treatment records (STRs) do not document any complaints, findings, diagnosis, or treatment of uterine fibroids. However, her STRs do note several reports of menstrual symptoms, including a missed menses noted in August 1983, a missed menses the previous month noted in November 1984, abnormal menses for three months and irregular periods noted in December 1990, and amenorrhea noted to be resolved in November 1997 and December 1997. Post-service, a 1999 Naval Hospital treatment record noted an assessment of menorrhagia, and the Veteran was prescribed birth control pills. A December 2005 Naval Hospital treatment record documented her referral to discuss bilateral tubal ligation (BTL) for sterilization. A January 2006 endometrial biopsy revealed a mid-secretory type endometrium, with no hyperplasia or neoplasia identified. At a July 2008 VA thyroid and parathyroid examination, she reported that she felt she had symptoms of hypothyroidism, including an irregular menstrual cycle starting in 2006. A VA ultrasound of her uterus in December 2008 revealed that both ovaries exhibited multiple follicular cysts. An April 2009 Naval Hospital treatment record noted that she had leiomyoma (fibroids) of the uterus, and three days later an April 2009 Naval Hospital treatment record noted her complaint of abnormal uterine bleeding with an assessment of menometrorrhagia. A May 2009 VA treatment record noted that she had “menorrhagia from fibroid.” After filing her claim for service connection for uterine fibroids in March 2010, an April 2010 VA treatment record noted that the Veteran’s medical problems included hypertrophy of the uterus and menorrhagia, and a May 2010 VA treatment record noted that she had been seen since December 2008 regarding dysfunctional uterine bleeding (DUB) for fibroids. At a June 2010 VA gynecology examination, the VA examiner diagnosed the Veteran with uterine fibroids and opined that such condition was “not caused by or related to military service.” For rationale, the VA examiner noted that the Veteran’s uterine fibroids were diagnosed more than 10 years after she was discharged from military service, and that there were no findings of uterine fibroids during her service or for several years thereafter. The VA examiner noted that the only complaint in service was “an occasional menorrhagia” which had been resolved. The Board notes that the VA examiner did not address the other menstrual symptoms which were documented in the Veteran’s STRs (as outlined above), including her reports of missed menses, abnormal/irregular menses, and amenorrhea during her service. Thereafter, private treatment records document that the Veteran underwent a hysterectomy in April 2011 which removed her uterus. The Board cannot make a fully-informed decision on this issue at this time because the June 2010 VA medical opinion did not consider all pertinent STRs, and because there are no medical opinions currently of record addressing whether there is any relationship between the Veteran’s uterine fibroids (which were present when she filed her service connection claim in March 2010) and her service-connected hypothyroidism. After any outstanding treatment records have been associated with the claims file, an addendum medical opinion should be obtained. 2. Entitlement to service connection for allergic rhinitis. The Veteran contends that she currently has allergic rhinitis which began during her military service. The Veteran’s STRs document the following pertinent findings. In April 1981, it was noted on a dental questionnaire that she was presently taking Alka-Seltzer Plus cold medicine. In January 1985, she was assessed with rhinitis. In March 1985, she complained of allergy symptoms mainly at night (“Seems to be something in bedroom”), and she was assessed with allergy. In December 1986, it was noted on a dental questionnaire that she was taking Drixoral medicine (“for cold”). In April 1988, she reported a six-day history of symptoms including congestion, and she was assessed with viral pharyngitis. In December 1988, she complained of symptoms including head congestion, and she was assessed with an upper respiratory infection (URI), noted to be resolving. In April 1991, she complained of sinus congestion, and she was assessed with a URI. Post-service, an October 2003 Naval Hospital treatment record noted that the Veteran had a past medical history of allergies, and also noted her current complaints of symptoms including wheezing over the past two to three weeks, which she related to “the night air”; it was further noted that she had experienced similar episodes in the past and in the past three to six months. A chest x-ray on that same date in October 2003 was normal. Thereafter, VA treatment records in February 2006 noted her prior history of wheezing and her current reports of “bilateral expirational wheezing” when in close contact with her pet rabbit, described as an “allergic reaction”; she was diagnosed with allergic bronchospasm. A May 2009 Naval Hospital treatment record noted that she was assessed with allergic rhinitis, and she was prescribed Claritin daily for control. An August 2009 private sleep study report noted that she had a medical history of asthma. After filing her claim for service connection for allergic rhinitis in March 2010, a March 2011 VA treatment record noted that her past medical history included seasonal allergies, and a November 2012 VA treatment record documented that she was prescribed Loratadine (Claritin) for allergies in August 2012. The Board cannot make a fully-informed decision on this issue at this time because there are no medical opinions currently of record addressing whether there is any relationship between the Veteran’s current allergic rhinitis disability and any incident of her military service. After any outstanding treatment records have been associated with the claims file, a VA examination with medical opinion should be obtained, with consideration of all pertinent STRs. 3. Entitlement to a compensable rating for variable anisocoria with intermittent right eye diplopia. The Veteran’s most recent VA eye examination was conducted in October 2011. Thereafter, in an April 2013 written statement, the Veteran asserted that the symptoms of her eye disability had worsened, to the point of having to patch one eye when her eyes “go double.” In addition, an October 2017 VA treatment record noted that the Veteran had been approved for occupational therapy through the Veterans Choice Program for her diplopia; however, there are no records of this Choice-authorized treatment currently in the claims file. On remand, after all outstanding treatment records have been obtained, a new VA eye examination should be scheduled in order to ascertain the current level of severity of the Veteran’s service-connected eye disability, as there is an indication that the current record does not adequately reflect the severity of her condition. 4. Entitlement to a TDIU rating. The Veteran does not currently meet the schedular criteria for a TDIU rating under 38 C.F.R. § 4.16(a), as evidenced by her most recent rating decision codesheet in October 2018. Because a decision on all of the other issues being remanded in this case could significantly impact a decision on the issue of entitlement to a TDIU rating, the issues are inextricably intertwined. A remand of the TDIU rating claim is required. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated her for uterine fibroids (including any post-hysterectomy residuals of such), allergic rhinitis, and her service-connected eye disability, including all records pertaining to her Choice-authorized treatment for diplopia. Make two requests for the authorized records from these providers, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records for the period from September 2018 to the present. 3. After all requested records have been associated with the claims file, obtain an addendum opinion from an appropriate clinician, after review of the electronic claims file, as to the following questions: (a.) Is it at least as likely as not that the Veteran’s uterine fibroids (which were present when she filed her service connection claim in March 2010) began during her active service or were otherwise related to any incident of her military service (with specific consideration given to all pertinent STRs)? (b.) Is it at least as likely as not that the Veteran’s uterine fibroids (which were present when she filed her service connection claim in March 2010) were either caused by or aggravated beyond their natural progression by her service-connected hypothyroidism? If the clinician determines that an examination is necessary to respond to the above question(s), then such should be scheduled. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician. 4. After all requested records have been associated with the claims file, schedule the Veteran for examinations by appropriate clinicians to determine the nature and etiology of any current allergic rhinitis disability and to determine the current severity of her service-connected eye disability. The electronic claims file must be made available to the examiners for review in conjunction with the examinations. All necessary tests should be performed and the results reported. (a.) For allergic rhinitis: The nose examiner must provide an opinion as to whether it is at least as likely as not that any current allergic rhinitis disability began during the Veteran’s active service or is otherwise related to any incident of her military service (with specific consideration given to all pertinent STRs). (b.) For the eyes: All pertinent symptomatology and findings for the Veteran’s variable anisocoria with intermittent right eye diplopia must be reported in detail. Any appropriate Disability Benefits Questionnaire (DBQ) should be filled out for this purpose, if possible. A complete rationale for all opinions must be provided. If the clinician(s) cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician(s) must provide the reasons why an opinion would require speculation. The clinician(s) must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician(s) must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician. 5. Thereafter, review the record, ensure that all development is completed (and arrange for any further development suggested by additional evidence received), and readjudicate the claims on appeal for entitlement to service connection for uterine fibroids (to include as secondary to her service-connected hypothyroidism), entitlement to service connection for allergic rhinitis, and entitlement to a compensable rating for variable anisocoria with intermittent right eye diplopia, followed by adjudication of the inextricably intertwined issue of entitlement to a TDIU rating (in light of the outcome of the other claims on appeal and including whether extraschedular referral is warranted). If any benefit sought on appeal remains denied, in whole or in part, a supplemental statement of the case must be provided to the Veteran and her attorney. After the Veteran and her attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. B. Yantz, Counsel