Citation Nr: 20023060 Decision Date: 04/02/20 Archive Date: 04/02/20 DOCKET NO. 18-21 018 DATE: April 2, 2020 ORDER Entitlement to an evaluation of 60 percent disabling for hiatal hernia with GERD, since January 29, 2018, is granted. Entitlement to a finding of total disability due to individual unemployability (TDIU), based solely on hiatal hernia with GERD, is granted. Entitlement to special monthly compensation (SMC) based on statutory housebound status is granted. FINDINGS OF FACT 1. Since January 29, 2018, the Veteran’s hiatal hernia with GERD is manifested by recurrent episodes of epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal arm pain, material weight loss, sleep disturbance occurring 4 or more times a year for an average duration of 10 days or more and nausea occurring four or more times a year for an average duration of 1 to 9 days at a time. 2. The Veteran’s hiatal hernia with GERD alone renders the Veteran unable to secure and follow substantially gainful employment. 3. The Veteran has additional service-connected disabilities ratable at 60 percent or more. CONCLUSIONS OF LAW 1. Since January 29, 2018, the criteria for an evaluation of 60 percent disabling for hiatal hernia with GERD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346 (2019). 2. The criteria for an award for TDIU for hiatal hernia with GERD are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 4.16, 4.19 (2019). 3. The criteria for an award of special monthly compensation by reason of being housebound have been met. 38 U.S.C. § 1114 (2012); 38 C.F.R.§ 3.350 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from December 1967 to December 1969. Thereafter, the Veteran joined the United States Army National Guard, serving a period of active duty from January 2003 to February 2004. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA), which granted an increased 10 percent rating for hiatal hernia with GERD, effective from January 26, 2015. In a February 2108 rating decision issued on conjunction with a statement of the case, the RO granted a 100 percent rating from November 12, 2014, in consideration of surgery for the condition requiring convalescence; a 10 percent rating from January 1, 2015; a 60 percent rating from March 31, 206; and a 30 percent rating from January 29, 2018. In timely perfecting the appeal April 2019, the Veteran expressly limited the appeal to the period of time for which he was rated 30 percent, from January 29, 2018. Additionally, in a separate February 2018 rating decision, the Veteran was awarded TDIU effective March 21, 2017, based on service-connected major depressive disorder and hiatal hernia with GERD. However, the issue of entitlement to TDIU due solely to service-connected hiatal hernia has also been raised by the record during the course of this appeal, as part and parcel of the claim for increased rating. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Moreover, the current award of TDIU does not render the inferred Rice claim moot, as if TDIU can be attributed to a single disability, additional compensation may be payable. Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). Furthermore, VA has a duty to infer claims for SMC when the evidence of record indicates potential entitlement. See Akles v. Derwinski, 1 Vet. App. 118 (1991). Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. The duty to notify was satisfied by notices included in the Fully Developed Claim (VA Form 21-526EZ) acknowledged by the Veteran in his January 2015 claim. The RO associated the Veteran’s service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating 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 civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2018); 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 evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran contends that he is entitled to a rating in excess of the current 30 percent for his hiatal hernia with GERD, based on gastric pain and major weight loss in the past 12 months. Under Diagnostic Code 7346, a 30 percent evaluation is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, regurgitation, accompanied by substernal or arm 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, Diagnostic Code 7346. The Veteran was again afforded a VA Esophageal Conditions examination in January 2018. During this examination, the Veteran described symptoms of difficulty with eating and pain overall and suggested that he was also suffering from nerve pain. He stated that he has pain any time after he eats or drinks a protein drink. He stated that on some days, he must lay down for at least 4 hours a day because of pain, and that 2 or 3 times a week he must lie down for a whole day. He stated that he often has increased pain with activity, which prompts him to sit or lay still, and that his wife does all of the work around the house because of his pain. The Veteran reported that the pain renders him unable to concentrate on tasks such as paying the bills. He also reported constipation, and frequent episodes of nausea, heartburn, and acid reflux. He indicated that pain affects his sleep on a nightly basis. The Veteran’s treatment plan requires constant medication, including pain medication. The VA examiner reported that the Veteran did not have an esophageal stricture, spasm of the esophagus, or an acquired diverticulum of the esophagus. The examiner identified specific symptoms associated with the condition, including persistently recurrent epigastric distress; dysphagia; pyrosis; reflux; regurgitation; substernal pain; sleep disturbance occurring 4 or more times a year for an average duration of 10 days or more; material weight loss, with a baseline weight of 220.8 pounds and current weight of 185 pounds; and nausea occurring four or more times a year for an average duration of 1 to 9 days at a time. The examiner also noted tenderness of the upper abdomen with guarding. Based on the evidence, the Board finds that since January 29, 2018, a 60 percent rating is warranted. Although the January 2018 examiner did not specifically characterize the Veteran’s symptoms as “a severe impairment of health,” as was done at a March 2016 examination, the Veteran appears to have exhibited the same symptoms since that time, with the exception of vomiting. Notably, the impact of symptoms such as sleep disturbance and nausea appear to have increased, with episodes of sleep disturbance lasting for 10 or more days and episodes of nausea lasting for 1 to 9 days. Additionally, the impact of the Veteran’s abdominal pain does not appear to have lessened since 2016, and if anything, has worsened, such that he must rest for hours to days at a time. Furthermore, although the Veteran’s weight loss does not qualify as “substantial weight loss” per 38 C.F.R. § 4.112, which requires 20 percent loss of the baseline weight, the examiner identified the Veteran’s weight loss from 220.8 to 185 as “material;” this equals 16 percent of baseline weight. Therefore, the Board finds that a rating of 60 percent under Code 7346 is warranted since January 29, 2018. TDIU Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). There is no requirement that employment be in a certain field or provide a certain standard of living or income level beyond the poverty level. Marginal employment or employment in a protected environment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Basic eligibility for TDIU is established where there is one disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent. In light of the 60 percent rating for hiatal hernia with GERD, the Veteran has also met schedular entitlement for TDIU on the sole basis of this disability. The Board finds that the Veteran is unable to secure substantially gainful occupation solely as a result of his hiatal hernia with GERD. In the January 2018 Esophageal Conditions examinations, the examiner concluded that based on the Veteran’s description of his symptoms, their impact upon his daily life, and the doctors notes that have been provided, “it would be very difficult to maintain any type of job unless working part time with a lot of flexibility.” Although this examiner proceeded to describe homebased jobs that may be possible for the Veteran, in light of his long work history as machinist, he does not have the transferrable skills to maintain such employment. Accordingly, since January 29, 2018, the Veteran is entitled to TDIU based on service-connected hiatal hernia with GERD. SMC VA has a duty to infer a claim for special monthly compensation when the evidence of record indicates potential entitlement. See Akles v. Derwinski, 1 Vet. App. 118 (1991). SMC at the housebound rate is payable by law where the veteran has a single service-connected disability rated as 100 percent and has additional service-connected disability or disabilities independently ratable at 60 percent. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The Board has granted TDIU based solely on hiatal hernia with GERD. For SMC purposes, this disability satisfies the requirement of a "service-connected disability rated as total." Bradley v. Peake, 22 Vet. App. 280, 293 (2008). The Veteran also has additional disabilities rated at 60 percent or higher during this time period. As noted above, his service-connected major depressive disorder is rated as 70 percent disabling effective March 21, 2017. According, entitlement to SMC at the statutory housebound rate is warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.P. Faris 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.