Citation Nr: 21003496 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 17-00 606 DATE: January 21, 2021 ORDER Entitlement to a compensable evaluation prior to December 20, 2016, and to an evaluation in excess of 30 percent from that date, for a small hiatal hernia with dyspepsia is denied. Entitlement to a compensable evaluation for bilateral hearing loss is denied. FINDINGS OF FACT 1. Prior to December 20, 2016, the Veteran’s small hiatal hernia with dyspepsia was characterized by reflux. 2. From December 20, 2016, the Veteran’s small hiatal hernia with dyspepsia has been characterized by persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal arm or shoulder pain, and sleep disturbance. 3. The Veteran’s bilateral hearing loss is manifest by at worst level I acuity in the right ear and level I acuity in the left ear. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation prior to December 20, 2016, and to an evaluation in excess of 30 percent from that date, for a small hiatal hernia with dyspepsia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.114, Diagnostic Code 7346. 2. The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1983 to December 2002. In November 2019 the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing at the above VARO; a transcript is of record. This claim was previously before the Board in February 2020, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. Increased Rating Disability ratings are based upon VA’s Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. In general, when 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). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a compensable evaluation prior to December 20, 2016, and to an evaluation in excess of 30 percent from that date, for a small hiatal hernia with dyspepsia Diagnostic code 7346 provides ratings for hiatal hernia. Hiatal hernia with two or more of the symptoms for the 30 percent rating of less severity is rated 10 percent disabling. Hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, is rated 30 percent disabling. Hiatal hernia with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health, is rated 60 percent disabling. 38 C.F.R. § 4.114. Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single rating will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. The Veteran had a VA examination in August 2013 at which the only symptom was noted to be reflux. The Veteran wrote in July 2014 that he had persistent recurrent epigastric distress for which he took Prilosec twice a day. At private treatment in October 2014 the Veteran was diagnosed with esophagitis based on biopsy results. On December 20, 2016, a treating physician wrote that the Veteran had persistently recurrent epigastric distress with dysphagia, pyrosis, reflux, regurgitation, substernal arm or shoulder pain, and sleep disturbance caused by esophageal reflux. The physician noted that the Veteran’s symptoms are persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal arm or shoulder pain, and sleep disturbance caused by esophageal reflux. The Veteran testified at the November 2019 hearing that he took medication twice a day. He had constant acid reflux if he did not take the medication. The condition also affected his sleep, and he had pain in his shoulders and chest. The Veteran had an examination arranged through VA at which he was diagnosed with gastroesophageal reflux disease (GERD), a small hiatal hernia with dyspepsia, and Barrett’s esophagus. He reported that he continued to experience symptoms of a constant feeling of something being stuck in his throat, belching, and regurgitation no matter what he ate. At night the Veteran got acid reflux that caused burning in his chest and awakened him. The symptoms were frequent heartburn and acid reflux that usually occurred after eating and worsened when lying down, causing him to use two pillows at night. The Veteran continued to take Prilosec. The examiner noted that the symptoms were persistently recurrent epigastric distress, dysphagia, regurgitation, substernal pain, and sleep disturbance caused by esophageal reflux. The Veteran does not qualify for a compensable evaluation prior to December 20, 2016, because the evidence of record does not show that he had at least two of the following: persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. See 38 C.F.R. § 4.114, Diagnostic Code 7346. The only symptom at the August 2013 examination was reflux, and the record does not show additional symptoms during this period. Regarding the period from December 20, 2016, the Veteran does not qualify for a rating in excess of 30 percent because the record does not show “pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. See 38 C.F.R. § 4.114, Diagnostic Code 7346. These symptoms were not present at the February 2020 examination and were not noted by the treating physician in December 2016. Finally, in light of the holding in Hart, supra, the Board has considered whether the Veteran is entitled to “staged” ratings for his service-connected small hiatal hernia with dyspepsia, as the Court indicated can be done in this type of case. Based upon the record, we find that at no time during the claims period has the disability on appeal been more disabling than as currently rated under the present decision of the Board. 2. Entitlement to a compensable evaluation for bilateral hearing loss In evaluating service-connected hearing loss, disability evaluations are derived from a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of bilateral hearing loss range from noncompensable (0 percent) to 100 percent based on organic impairment of hearing acuity. Audiological examinations used to measure impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and pure tone audiometric tests. 38 C.F.R. § 4.85(a). The Ratings Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I for essential normal acuity through XI for profound deafness) for hearing impairment, based upon a combination of the percent of the speech discrimination and pure tone threshold average which is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.8, Diagnostic Code 6100. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for the hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). The Veteran had a VA examination in July 2013. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 40 40 15 LEFT 20 35 40 35 25 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 in the left ear, and the pure tone threshold average was 34 in each ear. The Veteran experienced difficulty hearing in group situations and in work meetings. The Veteran testified at the November 2019 hearing that he had gotten hearing aids a year and a half before and that his hearing had worsened since the VA examination. The Veteran had an examination arranged through VA for hearing loss in February 2020. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 50 45 40 20 LEFT 30 45 50 50 40 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 94 percent in the left ear. The pure tone threshold averages were 39 in the right ear and 46 in the left. The Veteran said that his biggest problems were sitting in meetings at work, including hearing people at the other end of a table and when there is background noise. He had to ask people to repeat themselves in his daily life, had trouble distinguishing what was said without the use of hearing aids, and had difficulty hearing in groups. Exceptional patterns of hearing loss are not present. See 38 C.F.R. § 4.86. Therefore, Table VIA will not be used. When applying the pure tone averages and speech recognition scores from both the July 2013 and February 2020 examinations to Table VI, the right ear is assigned a Level I and the left ear is assigned a Level I. The Board then applies those levels to Table VII, which results in a 0 percent (noncompensable) evaluation for the Veteran’s bilateral hearing loss. The July 2013 and February 2020 examination reports additionally addressed the functional limitations related to the Veteran’s hearing loss. Martinak v. Nicholson, 21 Vet. App. 447 (2007). Nevertheless, a disability rating higher than 0 percent for bilateral hearing loss is not warranted based on any audiological findings of record. Finally, in light of the holding in Hart, supra, the Board has considered whether the Veteran is entitled to “staged” ratings for his service-connected bilateral hearing loss, as the Court indicated can be done in this type of case. Based upon the record, we find that at no time during the claims period has the disability on appeal been more disabling than as currently rated under the present decision of the Board. 3. TDIU In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total rating based upon individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, however, the record does not reflect he is unemployable due to his service-connected small hiatal hernia with dyspepsia and bilateral hearing loss. The July 2013 audiological examiner noted that the Veteran’s hearing loss impact employment due to difficulty hearing in group situations and work meetings. The August 2013 hiatal hernia examiner did not feel that the small hiatal hernia affected the Veteran’s ability to work. The February 2020 audiological examiner felt that the Veteran had no work restrictions due to hearing loss when he used proper adaptive devices. The Veteran reported some difficulty hearing people sitting on the other side of the table at work meetings and with background noise. The hiatal hernia examiner opined that the Veteran could not perform work exerting more than 50 to 100 pounds of force occasionally, 25 to 50 pounds frequently, and 10 to 20 pounds of force constantly to move objects. The record shows that as of February 2020 the Veteran was employed. Furthermore, while the record shows that there may be some interference with some job-related activities due to the service-connected disabilities, there is no cogent evidence of unemployability, and thus consideration of a TDIU is not warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott Shoreman, 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.