Citation Nr: 18156851 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-56 313 DATE: December 11, 2018 ORDER Service connection for a heart disorder, to include atypical chest pain and palpitations, is denied. A disability rating in excess of 30 percent for hiatal hernia and gastroesophageal reflux disease (GERD) is denied. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is granted. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran does not have a diagnosis of a heart disorder. 2. Throughout the period on appeal, the Veteran’s hiatal hernia and GERD has not manifested in symptoms such as weight loss and hematemesis, or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. 3. The Veteran requires the assistance of another person in performing the activities of daily living, including dressing, grooming, bathing, and preparing meals, is unable to attend to the wants of nature, and requires the assistance of another person in protecting herself from the hazards and dangers of her daily environment due to service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart disorder, to include atypical chest pain and palpitations, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for a disability rating in excess of 30 percent for hiatal hernia and gastroesophageal reflux disease (GERD) have not been met. 11 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code (DC) 7346. 3. The criteria for SMC by reason of the need for regular aid and attendance of another person have been met. 38 U.S.C. §§ 1114, 1502, 1521, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2002 to September 2002, April 2003 to November 2006, April 2007 to April 2008, and April 2009 to May 2015, with prior reserve service beginning in 1988. Service Connection 1. Entitlement to service connection for a heart disorder, to include atypical chest pain and palpitations The Veteran is claiming entitlement to service connection for a heart disorder, to include atypical chest pain and palpitations. Under the relevant laws and regulations, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(a). Further, service connection may be granted for any disease diagnosed after discharge when all of the evidence, including evidence pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a service connection claim, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may only be granted for a current disability, and therefore, when a claimed condition is not shown, there may be no grant of service connection. 38 U.S.C. § 1131; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). “In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Based on the evidence of record, the Board determines that service connection is not warranted because the Veteran does not have a competent diagnosis of a heart disorder. See Brammer, 3 Vet. App. at 225. As an initial matter, the Board notes that the November 2013 VA examination report indicates that the Veteran has been diagnosed with palpitations and atypical chest pain. However, chest pains and palpitations are symptoms and not disabilities in and of themselves for which VA compensation benefits are payable. Moreover, it is well-established that a symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a “disability” for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999); See also 61 Fed. Reg. 20,440, 20,445 (May 7, 1996). Indeed, the term “disability” as used for VA purposes refers to impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Further, although the examiner noted such diagnoses, he concluded that there was no pathology to render a diagnosis in this case. Additionally, the Board acknowledges that treatment records from December 2006, October 2008, and November 2009 and a statement of medical examination and duty status dated December 2014, which was based upon September 2009 and May 2013 examinations, diagnosed the Veteran with mild mitral regurgitation or indicated that she had been diagnosed with mild mitral regurgitation. Nevertheless, the November 2013 VA examiner, who evaluated the Veteran and reviewed an electrocardiogram, chest x-ray, and echocardiogram determined that the Veteran did not have a heart valve condition. In fact, as noted above, the examiner stated that he made no diagnosis of a heart condition because there was no pathology to render a diagnosis. Based upon the examiner’s review of the electrocardiogram, chest x-ray, and echocardiogram, and his experience and expertise, the Board assigns greater weight to the finding of the examiner that the Veteran has no diagnosed heart disorder. By virtue of the foregoing, the Veteran’s claim seeking service connection for a heart disorder, to include atypical chest pain and palpitations, is denied. Increased Rating 2. Entitlement to a disability rating in excess of 30 percent for hiatal hernia and GERD The Veteran contends she is entitled to a disability rating in excess of 30 percent for her hiatal hernia and GERD because her GERD has worsened and she experiences increased acid regurgitation despite adhering to a restricted diet. Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). For the period on appeal, the Veteran has been assigned a 30 percent rating under DC 7346 (hiatal hernia). 38 C.F.R. §§ 4.114, DC 7346. Under DC 7346, 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. Id. Based on the evidence of record, a rating in excess of 30 percent for the period on appeal is not warranted for the Veteran’s service-connected hiatal hernia and GERD because the evidence does not show any symptom combination productive of severe impairment of health. Specifically, at a November 2013 VA examination, the Veteran reported difficulty swallowing, burning, acid reflux, bloating, severe gas, foul smelling stools, abdominal pain, and constipation. Upon examination, the November 2013 VA examiner indicated that although the Veteran experienced recurrent vomiting, with four or more episodes of vomiting per year, she did not experience weight loss and hematemesis, nor did she experience melena with anemia. Further, the examiner opined that her GERD did not impact her ability to work. Given that the examiner did not find that the Veteran experienced material weight loss, hematemesis, melena, or anemia, his report constitutes probative evidence that the Veteran does not have a symptom combination productive of severe health impairment that would warrant a 60 percent rating. Moreover, the Veteran’s treatment records show that she does not meet the criteria for a 60 percent rating under DC 7346 because they do not indicate that she experienced a symptom combination of severe health impairment. Specifically, a treatment record from March 2015 indicates that the Veteran had not experienced hematemesis or melena. Treatment records from May 2017 and November 2017 indicate that the Veteran had not experienced melena. Treatment records from October 2016, April 2017, June 2017, and December 2017 indicate that the Veteran had not experienced nausea, vomiting, or abdominal pain. Finally, in a December 2015 treatment record, the Veteran denied unexpected weight loss. Therefore, the Board concludes that a rating in excess of 30 percent for her hiatal hernia and GERD is not warranted. In considering the appropriate disability rating, the Board has also considered the statements from the Veteran that her hiatal hernia and GERD are worse than the rating she currently receives, that she has lost “some” weight as a result of vomiting and regurgitation, and that she has difficulty swallowing food. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Although the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses, she is not competent to identify a specific level of disability of her hiatal hernia and GERD according to the appropriate diagnostic code. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s hiatal hernia and GERD have been provided by the medical personnel who have examined her during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination report) directly address the criteria under which this disability is evaluated. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran’s level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that the Veteran’s disability picture is not adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of her relevant symptoms related to her hiatal hernia and GERD, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic code, particularly given that the November 2013 VA examiner did not find that this disability caused her any functional impairment. Thus, the Veteran’s symptoms are not so unusual that they are outside the schedular criteria. Given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran’s disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). By virtue of the foregoing, the Board concludes that the criteria for a rating in excess of 30 percent for the period on appeal for hiatal hernia and GERD have not been met. 38 U.S.C. § 5107. SMC 3. Entitlement to SMC based on the need for aid and attendance and based on housebound status The Veteran asserts that she is entitled to SMC based on aid and attendance as a result of her service-connected disabilities. In addition to any benefits already received, a veteran may also be entitled to SMC benefits where there is an established need for regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b)(3). Requiring aid and attendance means that a person is helpless or so nearly helpless as to require the regular aid and attendance of another person. A veteran will be considered to be in need of regular aid and attendance if he: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of the visual field to 5 degrees or less; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under 38 C.F.R. § 3.352(a). See also 38 C.F.R. § 3.350(b), (c). The criteria to be considered in establishing a factual need for aid and attendance include: • The inability of the claimant to dress or undress herself, or to keep herself ordinarily clean and presentable; • Frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); • Inability of claimant to feed herself through loss of coordination of upper extremities or through extreme weakness; • Inability to attend to the wants of nature; or • Incapacity physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to her daily environment. 38 C.F.R. § 3.352(a). Being bedridden is a proper basis for the determination. “Bedridden” is that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that a claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated be found to exist before a favorable decision may be made. Moreover, it is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that a claimant is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant’s condition is such that would require her to be in bed. They must be based on the actual requirement of personal assistance from others. Id. In this case, the Board concludes that the evidence is at least in equipoise that the Veteran is entitled to SMC based on a factual need for aid and attendance under 38 C.F.R. § 3.352. Specifically, the November 2015 assessment for non-skilled home health aide services, the April 2016 VA examination report, and the competent and credible statements of her sister, mother, and friend of 15 years establish that the evidence is at least in equipoise for entitlement to SMC based on the need for aid and attendance. The November 2015 assessment and the April 2016 VA examination demonstrate that the Veteran is unable to dress herself and keep herself ordinarily clean and presentable, an inability to feed herself, and an inability to attend to the wants of nature. In the November 2015 assessment the examining social worker reported that the Veteran requires some help from another person to put on her clothes, requires daily help from another person for grooming, requires help washing and drying her body, and has toileting accidents more than once per week. Further, the examining social worker reported that the Veteran is dependent upon others to perform shopping activities, housekeeping activities, and laundry. Finally, the examining social worker reported that the Veteran needs assistance to prepare meals, travel, manage her medication, and manage her finances. Similarly, in the April 2016 VA examination report, the examiner indicated that the Veteran requires assistance with all activities of daily living, including an inability to walk any distance. Finally, the December 2015 statements of the Veteran’s sister, mother, and friend of 15 years indicate that the Veteran requires care or assistance on a regular basis to protect herself from hazards or dangers incident to her daily environment. Specifically, in her December 2015 statement, the Veteran’s sister reported that it was unsafe for the Veteran to ambulate because she had been falling and sustaining injuries. Similarly, in her December 2015 statement, the Veteran’s mother and friend of 15 years reported that the Veteran had frequently fallen when attempting to ambulate. In reaching its conclusion that the evidence is at least in equipoise that the Veteran has established entitlement to SMC based on aid and attendance, the Board observes the negative evidence, including the statement in the April 2016 VA examination report, where the examiner indicated that the Veteran is “currently” able to leave her home on a daily basis, but that she would housebound after the performance of elbow surgery. Here, the Board finds that the examiner’s statement does not outweigh the sum of the evidence, including his own statement that the Veteran requires assistance with all activities of daily living and reiterates that it is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable decision may be made. By virtue of the foregoing, the Board concludes that the evidence is at least in equipoise that the Veteran is entitled to SMC based on the need for aid and attendance. Therefore, the Veteran’s claim of entitlement to SMC based upon aid and attendance is granted. Additionally, because the Board finds that this benefit is warranted, the Veteran is legally precluded from also obtaining SMC for housebound status under 38 C.F.R. § 3.350. SMC based on housebound status is a lesser benefit than SMC at the aid and attendance rate. See 38 U.S.C. § 1114(l), (s); 38 C.F.R. § 3.350(i). Accordingly, the grant of SMC at the aid and attendance rate renders the housebound issue moot. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Crosnicker, Associate Counsel