Citation Nr: 20007589 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 15-40 356 DATE: January 29, 2020 ORDER Entitlement to an initial rating of 60 percent for a hiatal hernia with gastroesophageal reflux (GERD), prior to September 22, 2016, is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, prior to September 22, 2016, the Veteran’s hiatal hernia with GERD manifested in symptoms of atypical chest pain, abdominal pain, vomiting, material weight loss, and other symptom combinations productive of severe impairment of health. CONCLUSION OF LAW Prior to September 22, 2016, the criteria for entitlement to an initial rating of 60 percent for a hiatal hernia with GERD, have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.114, Diagnostic Codes 7399-7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from December 1963 to December 1966, and from February 1967 to December 1972. This matter comes before the Board of Veterans’ Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (CAVC). This matter was originally before the Board on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) located in Waco, Texas. The September 2015 rating decision granted the Veteran’s claim for entitlement to service connection for hiatal hernia with GERD and assigned a 10 percent initial disability rating effective June 29, 2011, and granted a claim of entitlement to service connection for esophageal stricture assigning a 30 percent initial rating, effective June 29, 2011. During the pendency of the appeal, a November 2016 rating decision granted a 60 percent disability rating for the Veteran’s service-connected hiatal hernia with GERD, effective September 22, 2016. In November 2016, the Veteran submitted a claim for entitlement to an increased rating for service-connected esophageal stricture. In January 2017, the RO granted an increased rating of 50 percent, effective September 22, 2016, for service-connected esophageal stricture. In March 2017, the Veteran submitted a NOD requesting an earlier effective date for the increased 50 percent rating for esophageal stricture. In July 2017, the Veteran substantively appealed both issues to the Board. The Board notes that the Veteran’s substantive appeal included service connection claims for a skin disability, eye disability, heart disability, hypertension and peripheral neuropathy. In November 2018, the Board remanded these claims for further development. The claims have not been returned to the Board and are not addressed in this decision. In the November 2018 decision, the Board also granted the Veteran an initial 30 percent disability rating, but no higher, prior to September 22, 2016, for service-connected hiatal hernia with GERD; thus, denying an initial disability rating in excess of 30 percent prior to September 22, 2016 for service-connected hiatal hernia, and denied a disability rating in excess of 60 percenter from September 22, 2016. Additionally, the Board also denied the Veteran’s claim for entitlement to an effective date prior to September 22, 2016, for the award of a 50 percent disability rating for esophageal stricture. The Veteran appealed the Board’s November 2018 decision to the CAVC. An August 2019 CAVC Memorandum Decision upheld the Board’s November 2018 decision with regard to denial of entitlement to a rating in excess of 60 percent for a hiatal hernia with GERD from September 22, 2016, and denial of entitlement to an effective date prior to September 22, 2016 for the award of a 50 percent initial rating for esophageal stricture. The CAVC remanded the Board’s denial of an initial rating in excess of 30 percent for service-connected hiatal hernia with GERD prior to September 22, 2016, noting inadequate reasons and bases in the decision. As such, the Board shall only address the period prior to September 22, 2016. The Board notes that the Veteran submitted private medical records and additional lay statements after the January 2016 substantive appeal. The provisions of 38 U.S.C. § 7105(e) provides that an automatic waiver of initial RO review is applicable if a Veteran submits evidence to the Board with, or after submission of, a substantive appeal in cases where the substantive appeal was filed on or after February 2, 2013. See 38 C.F.R. §§ 19.37(b); 20.1304(c). The Board further acknowledges that additional evidence was associated with the claims file. However, the newly associated evidence is duplicative and/or not relevant to the Veteran’s claim on appeal, and a waiver is not necessary. 38 C.F.R. § 20.1304(c). As such, remand for initial consideration by the RO is not necessary. Moreover, as this decision represents a full grant of benefits, there is no prejudice to the Veteran. The Board is cognizant of the ruling the CAVC in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him unemployable. Accordingly, the Board concludes that a claim for a TDIU has not been raised. Entitlement to an initial rating in excess of 30 percent for a hiatal hernia with GERD prior to September 22, 2016 The Veteran’s service-connected hiatal hernia is rated at 30 percent prior to September 22, 2016 under the provisions of 38 C.F.R. § 4.114, Diagnostic Codes 7399-7346. Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Disabilities involving the digestive system are evaluated under the regulatory criteria found at 38 C.F.R. §§ 4.110-4.114. In this case, Diagnostic Code 7399 is used to identify digestive disabilities that are not specifically listed in the schedule but are rated by analogy to similar disabilities under the schedule. See 38 C.F.R. §§ 4.20, 4.27. The assignment of Diagnostic Code 7346 shows that the Veteran’s service-connected hiatal hernia with GERD is rated as analogous to hiatal hernia. Under Diagnostic Code 7346, a 30 percent evaluation is assigned when there is evidence of persistently recurrent epigastric distress with dysphasia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent evaluation 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. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Throughout the period on appeal, the Veteran has asserted that his hiatal hernia with GERD has manifested with heartburn and chest pain radiating to the arms and shoulders, abdominal pain, throat problems, problems swallowing food, regurgitation which interrupts sleep pattern, and nausea with vomiting. See December 2011 Correspondence, October 2014 DRO Hearing Transcript, June 2015 VA Examination. A June 2015 VA examination found the Veteran’s disability was manifested by symptoms that included persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal arm and shoulder pain, sleep disturbance, nausea and vomiting. There was no finding of hematemesis, melena or anemia. However, August 2016 discharge instructions from the San Antonio Regional Hospital provides that the Veteran was to follow up with his “primary doctor as soon as possible concerning your blood stools…” See February 2017 Private Medical Records. The Veteran asserted that additional evidence of blood in his stools was previously submitted with a list of conditions that included “hemorrhage of rectum and anus.” See June 2015 Private Medical Records. Though there is no mention of blood in stools in these records, the Board notes that the Veteran is competent to report his observable symptoms such as blood in his stools. See Jandreau v. Nicholson, 492, F.3d 1372, 1377 (Fed. Cir. 2007). Because the September 2016 VA examination confirmed melena and adds veracity to the Veteran’s lay statement that he experienced blood in his stools prior to September 22, 2016, resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran experienced blood in his stools prior to September 22, 2016. Regarding material weight loss, in an April 2012 private medical note, a review of the Veteran’s systems revealed positive for unintentional weight loss. See September 2013 Correspondence. Though the April 2012 private medical note does not specifically relate the unintentional weight loss to the Veteran’s hiatal hernia with GERD, a September 2016 VA examination noted that the Veteran lost weight within the last year due to his condition and found material weight loss. Additionally, Veteran asserted that his symptoms included weight loss on his January 2016 VA Form 9. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s hiatal hernia with GERD was manifested by symptoms to include material weight loss prior to September 22, 2016. Regarding symptom combinations productive of severe impairment of health, the Board notes that medical records demonstrate the Veteran’s symptoms included a discharge diagnosis for atypical chest pain, probably secondary to his reflux disease, and sleep disturbances caused by esophageal reflux. See September 2013 Private Medical Record; June 2015 VA Examination. The June 2015 VA examiner also noted that the Veteran has had several esophageal dilation procedures due to dysphagia related to herniation and GERD. See June 2015 VA Examination. In light of the above, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s service-connected hiatal hernia with GERD more closely approximates the criteria for a 60 percent disability rating prior to September 22, 2016. A 60 percent disability rating represents the maximum schedular evaluation available under the schedular criteria for Diagnostic Code 7346. For the appeal period prior to September 22, 2016, the Veteran is receiving the maximum allowable schedular disability rating; therefore, a higher schedular rating for the service-connected hiatal hernia with GERD may not be granted under Diagnostic Code 7346. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board has considered whether the Veteran or the record has raised the question of referral for an extraschedular rating adjudication under 38 C.F.R. § 3.321(b) for the period on appeal. See Thun v. Peake, 22 Vet. App. 111 (2008). After review of the lay and medical evidence of record, the Board finds that the question of an extraschedular rating has not been made by the Veteran or raised by the record as to the issue on appeal. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). As such, the Board finds the criteria for a 60 percent initial disability rating prior to September 22, 2016, is warranted. 38 C.F.R. §§ 4.3, 4.114, Diagnostic Codes 7399-7346. Additionally, the Board notes the Veteran is separately service connected for his esophageal stricture under Diagnostic Code 7203. The Board finds no other applicable diagnostic codes which would afford the Veteran a higher disability evaluation for the period on appeal. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. P. Moore, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.