Citation Nr: 20050776 Decision Date: 07/30/20 Archive Date: 07/30/20 DOCKET NO. 08-09 981 DATE: July 30, 2020 ORDER Entitlement to increased rating for hiatal hernia with gastritis in excess of 10 percent is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities prior to May 9, 2012 is remanded. FINDING OF FACT The Veteran’s symptoms are most approximate to the 10 percent rating due to pyrosis, reflux and regurgitation but without functional impact to Veteran’s health. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for hiatal hernia with gastritis are not met. 38 U.S.C. §§ 1155, 5107 (as in effect prior to February 19, 2019); 38 C.F.R. §§ 3.102, 4.1-4.7, 4.114, Diagnostic Code 7307 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1984 to December 1984, August 1988 to October 1988, February 2003 to January 2004 and July 2009 to August 2011. This April 2008 appeal comes before the Board of Veterans’ Appeals (Board) from a January 2007 rating decision (RD) issued by the Department of Veterans Affairs (VA) Regional Office (RO), in San Juan, Puerto Rico granting a 10 percent rating for service-connected hiatal hernia with gastritis. The Board remanded the appeal in May 2017 for additional development, a VA examination and readjudication on the issue of increase rating for hiatal hernia in addition to individual unemployability (TDIU) prior to January 17, 2013. The RO issued a May 2020 supplemental statement of case (SSOC) for the increased rating for hiatal hernia and a May 2020 rating decision (RD) granting TDUI as of May 9, 2012. The case was then returned the Board for adjudication. 1. Entitlement to increased rating for hiatal hernia with gastritis in excess of 10 percent. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. Examination reports are to be interpreted considering the entire recorded history, and each disability must be considered from the viewpoint of the Veteran working or seeking work. 38 C.F.R. § 4.2. If two evaluations are potentially applicable, the higher evaluation 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’s service-connected stomach condition, diagnosed as a hiatal hernia with gastritis is rated 10 percent disabling pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7307 and 7346, the rating criteria for gastritis and hiatal hernia, respectively. Under Diagnostic Code 7307, a 10 percent rating is assigned for mild gastritis, with brief episodes of recurring symptoms once or twice yearly. A 30 percent rating is contemplated for chronic gastritis with multiple small eroded or ulcerated areas and symptoms. A 60 percent rating is warranted for chronic gastritis with severe hemorrhages, or large ulcerated or eroded areas. Under Diagnostic Code 7346, a 60 percent rating is warranted if the disability is manifested by pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. A 30 percent rating is assigned if symptoms consist of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substantial or arm or shoulder pain, productive of considerable impairment of health. With two or more of the symptoms for the 30 percent evaluation of less severity, a 10 percent rating is assigned. 38 C.F.R. § 4.114. VA’s Rating Schedule provides that there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14. 38 C.F.R. § 4.113. For that reason, ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive may not be combined with each other. Rather, a single evaluation is assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. In a March 2008 VA examination, the Veteran stated his symptoms were getting progressively worse with daily esophageal pain, heartburn and regurgitation several times a week. The VA examiner diagnosed non-erosive GERD and gastritis, but the condition had no effect on the Veteran’s ability to work or his daily activities and the Veteran controlled the symptoms with daily medication. In a January 2011 VA examination, the Veteran reported a history of epigastric burning sensation, diarrhea, bloating, and reflux since 2003 but stated he had no follow up treatment for the condition. He reported dysphagia less then monthly, heartburn and regurgitation daily. The Veteran saw improvement with medication and following diet. An upper GI was preformed and showed a small sliding-type of hiatal hernia and gastroesophageal reflux. The Veteran’s condition had no significant effects on his occupation or on his daily activities. In a January 2012 VA examination, the Veteran reported persistent symptoms of acid reflux, a burning sensation that moves towards his mouth leaving a sour taste, coughing and belching since his January 2011 VA examination. He stated he takes continuous medication. The VA examiner opined that the Veteran’s symptoms did not interfere with his ability to work. Further, an upper GI was not performed due to low accuracy and inability to show the presence of acid reflux. The Veteran’s contends in his September 2014 statement that his symptoms have been continuous and have continued to worsen and that despite not receiving continuous treatment, that his rating should be increased to 30 percent. Although the March 2008, January 2011 and January 2012 VA examinations are not complete in reporting all findings necessary to rate the Veteran’s service-connected hiatal hernia with gastritis, all three examinations report consistent symptoms of heartburn and regurgitation that improve with medication and no negative affect on the Veteran’s employment. Further, the Veteran’s VA examinations and VA treatment records do not indicate that the Veteran’s symptoms included persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. An October 2017 VA examination revealed that the Veteran complained of acid reflux, and epigastric burning approximately 3 times a week for which he takes medication. In addition, he reported symptoms of pyrosis, regurgitation and sleep disturbances approximately 4 or more times per year that last less than 1 day. The Veteran also reported abdominal pain approximately once a month or more but no other symptoms; there was no incapacity and no functional impact of the Veteran’s disability. A September 2019 VA medical opinion stated that an endoscopy was not completed as it was an invasive procedure that was unnecessary since there was no mention or suspicion of ulcerated areas or erosion of the esophagus or stomach based upon the Veteran’s reported symptoms and medical examination. The Board finds that during the period of appeal the Veteran had pyrosis, reflux, and regurgitation. However, the evidence of record does not show that the Veteran had persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health that would warrant a rating in excess of 10 percent. 38 C.F.R. § 4.114. The 2017 VA examiner opined that the Veteran suffered no incapacity or functional impact due to his disability. Further, a rating of 10 percent is not warranted for the Veteran’s gastritis as there is no evidence that the condition has worsened or that his gastritis is demonstrated by small nodular lesions and symptoms. 38 C.F.R. § 4.114. Accordingly, a 10 percent, but no higher rating for hiatal hernia with gastritis is warranted. For the foregoing reasons, the preponderance of the evidence is against the claim for a rating in excess of 10 percent for hiatal hernia with gastritis. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities prior to May 9, 2012 is remanded. Although the Board sincerely regrets the necessity of an additional remand and the delay this will cause, the Board finds remand is necessary to ensure compliance with prior remand directives prior to final adjudication of this matter. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West,11 Vet. App. 268, 271(1998). The RO complied with the instructions of the May 2017 Board remand, insofar as the RO provided the Veteran with a VA examination to determine the current severity of his hiatal hernia with gastritis. The RO scheduled the VA examination after which the RO issued a May 2020 RD granting the Veteran’s claim for TDIU from May 9, 2012 and a May 2020 SSOC denying a rating increase in excess of 10 percent for Veteran’s hiatal hernia with gastritis. However, the RO did not provide a SSOC for the Veteran’s claim for TDIU nor did the RO refer the case to the Director of Compensation for consideration of extraschedular TDIU prior to August 17, 2011 as stated in the May 2017 Board remand directives. Therefore, a remand is required for further adjudication of the issue and issuance of a SSOC in addition to referral of the case for extraschedular consideration. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: The RO should refer the case to the Director of Compensation for consideration of extraschedular TDIU prior to August 17, 2011. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Aubee, 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.